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TREATISE 


LAW 


OF 


Municipal  Corporations. 


BY 

JOHN  F.  DILLON,  LL.  D. 

THE  CIRCUIT  JUDGE  OP   THE  UNITED   STATES  FOB   THE  EIGHTH   JUDICIAL  CIRCUIT, 

PROFESSOR  OF  LAW  IN  THE   UNIVERSITY  OF  IOWA,  AND  LATE  ONE 

OF  THE  JUSTICES  OF  THE  SUPREME  COURT  OF  IOWAl 


CHICAGO: 

JAMES  COCKCROFT  &  COMPANY. 
1872. 

/ 


K3  VOWS' 

Entered  according  to  the  act  of  Congress,  in  the  year  1872, 

By  JOHN  F.  DILLON, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


53  OS 

DS7 


ebuatintt. 


TO  THE   HONORABLE 


SAMUEL  F.   MILLER,   LL.  D., 

ASSOCIATE  JUSTICE  OF  THE  SUPREME   COURT 
OF  THE  UNITED  STATES. 


WHETHER  I  SHARE   IN  THE  GENERAL  ADMIRATION  OF  YOUR    JURLDICAL 

TALENTS,   OR   LISTEN  TO   THE   MORE   PERSUASIVE  SUGGESTIONS    OF  A 

VOICE    THAT    COMES  TO    ME  FROM    LONG    ASSOCIATION    AT    THE 

BAR  AND   UPON    THE   BENCH,   THERE    IS  NO  ONE  TO   WHOM 

I    CAN    INSCRIBE,    SO    FITTINGLY    AS    TO    YOURSELF,    A 

WORK   RELATING    TO   AN    IMPORTANT    BRANCH    OF 

THAT  SCIENCE  WHICH  YOU  HAVE  STUDIED  SO 

DEEPLY    AND    UNDERSTAND    SO    WELL. 


PKEFACE. 


The  necessity  for  a  work  upon  the  subject  of  the  present  Treatise  was  so 
seriously  felt  by  the  author  when  holding  a  seat  on  the  Supreme  Bench  of 
a  state  where  questions  relating  to  the  powers,  duties,  and  liabilities  of  mu- 
nicipalities were  presented  at  almost  every  term,  that  he  resolved,  eight 
years  ago  and  more,  to  undertake  to  supply  the  want.  Although  the  subject 
is  one  of  unsurpassed  practical  importance,  since  nearly  every  considerable 
city  and  town  in  the  United  States  is  incorporated,  no  American  work  upon 
it  has  ever  appeared.  A  careful  examination  of  the  English  treatises  satis- 
fled  the  author  that  they  were,  in  a  great  measure,  inapplicable  here,  and 
that  they  fail  to  cover  a  large  portion  of  the  existing  field  of  the  law  upon 
the  subject  as  enlarged  by  American  legislation  and  practice.  True,  our 
•municipal  system,  like  the  body  of  our  jurisprudence,  was  derived  from 
England,  but  it  is  remarkable  how  many  changes  were  necessary  to  adapt 
it  to  our  system  of  government  and  modes  of  administration,  and  to  the 
wants  and  situation  of  our  people.  Accordingly,  if  the  municipalities  of 
the  one  country  be  closely  compared  with  those  of  the  other,  it  will  be 
found  that  in  their  structure,  powers,  and  workings,  they  present  quite  as 
many  points  of  difference  as  of  similarity. 

We  have  popularized  and  made  use  of  municipal  institutions  to  such  an 
extent , as  to  constitute  one  of  the  most  striking  features  of  our  government. 
It  owes  to  them,  indeed,  .in  a  great  degree,  its  decentralized  character. 
When  the  English  Municipal  Corporations  Keform  Act  of  1835  was  passed 
there  were  in  England  and  Wales,  excluding  London,  only  two  hundred 
and  forty-six  places  exercising  municipal  functions;  and  their  aggregate 
population  did  not  exceed  two  millions  of  people.  In  this  country  our 
municipal  corporations  are  numbered  by  thousands,  and  the  inhabitants 
subjected  to  their  rule  by  millions. 

Our  municipalities  are  habitually  clothed  by  the  legislatures  with  exten- 
sive, important,  and  diversified  powers,  and  consequently  possess  a  much 
more  composite  character  than  in  England  or  elsewhere.  Strictly,  a  mu- 
nicipal corporation  is  an  institution  designed  to  regulate  and  administer 
the  mere  local  or  internal  concerns  of  the  incorporated  place  in  matters  per- 
taining to  it  and  not  relating  directly  to  the  people  of  the  state  at  large. 
Put  in  this  country,  much  more  generally  than  in  England,  it  is  the  prac- 
tice to  make  use  of  the  municipality,  or  of  its  officers,  as  agencies  of  the 
(State,  for  the  exercise,  on  its  behalf,  of  public,  in  addition  to  corporate,  duties 
and  functions.  From  the  difference  between  these  two  classes  of  powers 
the  American  courts  have  deduced  consequences  so  important  that  it  is 
as  necessary,  as  it  is  oftentimes  difficult,  to  distinguish  between  them. 
Besides,  it  ;has,  unfortunately,  become  quite  too  common  with  us  to  confer 


VI  PREFACE. 

upon  our  corporations  extra-municipal  powers,  such  as  the  authority  to  aid 
in  the  construction  of  railways,  or  like  undertakings,  which  are  better  left 
exclusively  to  private  capital  and  enterprise,  and  to  create,  in  their  cor- 
porate capacity,  indebtedness  therefor,  enforceable  by  actions  in  the  courts, 
and  which  must  be  paid  by  taxation. 

Invested,  also,  within  certain  limits,  with  delegated  legislative  authority 
concerning  the  property  and  conduct  of  their  inhabitants  ;  with  power, 
more  or  less  extensive,  to  acquire  and  dispose  of  property ;  with  the  right 
to  elect  their  own  officers ;  to  make  contracts ;  to  incur  liabilities ;  to  exer- 
cise Eminent  Domain;  and  the  equally  momentous  power,  to  levy  and 
collect  taxes,  general  and  special ;  these  corporate  agencies  are  thus  brought 
into  intimate  and  daily  contact  with  the  most  important  rights  and  inter- 
ests of  their  inhabitants,  and  as  a  result,  we  have  an  amount  and  variety 
of  litigation  not  to  be  found  in  the  tribunals  of  other  countries.  In  no 
English  treatise  on  Municipal  Corporations  is  there  a  chapter  upon  the 
subject  of  civil  actions  and  liabilities,  and  no  discussion  of  the  question  as 
to  their  amenability  to  respond  civilly  in  damages  to  individuals  for  acts 
of  misfeasance,  or  for  neglect  of  duty  ;  and  for  reasons  not  material  to  be 
here  stated,  the  occurrence  of  questions  of  this  kind  in  the  English  tribu- 
nals has  been  comparatively  infrequent.  The  American  Reports,  however, 
teem  with  cases  on  this  subject,  and  the  civil  liability  of  municipal  corpo- 
rations upon  contracts  and  for  torts,  and  the  mode  of  enforcing  it,  are  with 
us  the  most  important  practical  topics  requiring  treatment  in  a  work  of 
this  character. 

There  being  no  Amrican  work  on  this  branch  of  the  law,  and  the  de- 
cisions in  this  country  relating  to  it  being  scattered  through  the  reports  of 
the  federal  courts,  and  those  of  thirty-seven  states,  there  was  little  to  guide 
the  author,  either  as  to  the  arrangement  of  his  subject  or  as  to  what  had 
been  decided  by  the  courts  concerning  it.  Accordingly,  he  had  no  resource 
except  to  delve  laboriously  for  his  materials  among  hundreds  of  volumes; 
but  these  have,  one  by  one,  been  examined  by  him  with  a  view  to  find  all 
that  could  be  advantageously  used  to  illustrate  the  subject,  and  the  result 
is  given,  either  in  the  text  or  notes,  as  fully  as  it  was  practicable  within  the 
compass  of  a  single  volume.  Nor  has  he  overlooked  the  aid  to  be  derived 
from  other  sources.  Every  English  publication  relating  to  the  subject  in 
its  legal  or  practical  relations  has  been  subjected  to  examination ;  books 
which  could  not  otherwise  be  had  have  been  specially  procured  from 
abroad.  And,  throughout  the  present  volume,  no  inconsiderable  pains 
have  been  taken  to  set  forth  wherein  the  English  and  American  munici" 
palities  differ,  so  that  the  applicability  and  precise  legal  value  of  the  judi- 
cial decisions  of  the  former  country  would  be  better  understood. 

When  the  work  was  resolved  upon,  the  author  hoped  to  proceed  with  the 
leisurely  care  that  would  enable  him  to  avoid  the  faults  which  thorough 
deliberation  might  result  in  correcting.  This  hope  has  not  been  as  fully 
realized  as  he  desired,  for  year  by  year  his  official  duties  have  more  and 
more  encroached  upon  his  time,  leaving  for  this  work  only  the  dimin- 
ishing intervals  between  courts.  In  its  preparation  he  has  often  envied 
the  author  by  profession  the  opportunity  for  continuous  and  unbroken 
labor,  and  he  cannot  but  feel  that  if  his  work  had  not  been  prepared  in 


PREFACE.  Vll 

fragments,  it  would  not  have  fallen  both  so  far  below  his  ideal,  and  what, 
under  more  auspicious  circumstances,  he  himself  might  have  made  it.  It 
is  hoped,  however,  if  it  shall  lack  the  symmetry  and  finish  such  an  author 
would  have  given  it,  that  it  may  have  pompensating  advantages  in  its 
thoroughly  practical  character  ;  and  these  it  will  surely  owe  to  that  experi- 
ence to  which  the  mere  student  or  professional  writer  must  ever  be  a 
stranger,  and  which  can  be  had  only  upon  the  bench  or  at  the  bar. 

Some  peculiarities  in  the  manner  of  its  preparation  will  be  observed.  The 
aim  throughout  has  been  to  makeja  work  which  will  be  useful  to  the  pro- 
fession. Aware  that  in  most  places  access  to  complete  law  libraries  cannot 
be  had,  the  author  has  endeavored,  as  far  as  practicable,  to  supply  this 
want  and  to  make  the  text  and  notes  exhibit  the  substance  of  the  adjudi- 
cations. This  explains  why  so  much  care  has  been  taken  to  cite  the 
cases  bearing  upon  the  subjects  discussed,  and  accounts  for  the  fulness  of 
proofs  and  illustrations  to  be  found  in  the  notes. 

He  trustfully  submits  the  Work,  which  fills  up  the  interstices  between 
judicial  duties  for  nearly  nine  years,  to  the  profession  for  whose  assistance 
it  is  designed,  and  whose  final  judgment  upon  it  will  not  be  otherwise 
than  just.  If  he  could  be  assured  that  it  has  a  value  at  all  proportioned  to 
the  labor  first  and  last!,bestowed  upon  it,  he  would  venture  to  hope  for  a 
judgment  not  altogether  unfavorable. 

Davenport,  Iowa,  1872. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 


MUNICIPAL    INSTITUTIONS  —  INTRODUCTORY   HISTORICAL   VIEW. 

Ancient  cities.  Grecian  cities.  Roman  municipalities.  State  of  towns  in 
Europe  after  the  fall  of  the  Roman  Empire.  Medieval  Charters.  Char- 
ters of  Community  in  France.  Modifications  of  Roman  municipal  sys- 
tem. Enfranchisement  of  towns  in  Spain,  and  its  causes.  Municipal 
system  of  Great  Britain.  Historical  sketch  of  Boroughs:  their  incorpora- 
tion and  distinctive  features.  Origin  of  popular  representation.  London 
and  its  municipal  history  and  charters.  Corruption  and  abuses  in  the 
English  municipal  corporations.  Reform  Act  of  1835.  Lord  Brougham's 
services  in  promoting  municipal  reform.  American  municipal  system. 
Its  early  origin.  Decentralized  character.  Operation  and  effects.  Cor- 
ruption and  abuses.    Remedy  suggested.    Results  summed  up.     pp.  1-26 

CHAPTER  II. 

CORPORATIONS   DEFINED   AND   CLASSIFIED. 

General  definition.  Municipal  corporations  defined.  Different  kinds  and 
grades  of  public  corporations.  Quasi  Corporations.  New  England  towns : 
powers  and  mode  of  government.  City  Governments.  The  State  as  a 
public  Corporation.  pp.  27-43 

CHAPTER  III. 

CREATION  AND   SEVERAL   KINDS   OF   MUNICIPAL  CORPORATIONS. 

In  England.— Royal  and  parliamentary  corporations.  The  old  English  mu- 
nicipal corporations.  Their  diverse  character.  Integral  parts.  Abuses 
in  municipal  rule.  Municipal  Reform  Corporations  Act  of  1835.  Abstract 
of  its  leading  provisions.  Constitutes  the  English  corporations  upon  an 
uniform  model. 

In  the  United  States.— Created  by  state  legislative  enactment.  Their  great 
numbers.  Creation  by  territorial  legislatures.  Special  Charters  and 
General  Incorporating  Acts.  Outline  of  ordinary  charter.  Advantages 
of  General  Incorporating  Acts.  Creation  by  implication.  Acceptance  of 
charter.  Submission  to  vote  of  inhabitants.  Special  constitutional  pro- 
visions and  their  construction.  General  and  special  acts.  Restriction 
on  municipal  powers.    Title  of  incorporating  Charter  or  Acts.  pp.  44-69 


X  TABLE   OF   CONTENTS. 

CHAPTER  IV. 

PUBLIC  AND  PRIVATE  CORPORATIONS  DISTINGUISHED. —  LEGISLATIVE  POWER  AND 

ITS   LIMITATIONS. 

Importance  of  the  distinction  between  public  and  private  corporations.  Dif- 
ference defined.  Scope  of  legislative  authority.  Complex  character  of 
ordinary  municipalities.  Distinction  between  public  or  state  and  munic- 
ipal or  local  powers-jf^Legislative  authority  over  corporate  funds  and 
revenues.  Limitation  in  favor  of  creditors.  Power  over  corporate  bound- 
aries and  public  property.  Whether  municipal  corporations  are  in  any 
respect  private.  Cases  cited  and  criticised.  Public  powers  and  rights 
held  at  the  will  of  the  legislature.  Creditor's  rights  cannot  be  impaired. 
Illustrations  from  decided  cases.  Extent  of  legislative  power  over  the 
private  property  of  municipal  corporations  discussed.  May  be  compelled 
by  the  legislature  to  pay  debts  not  legally  binding ;  and  to  incur  debts 
against  their  will.    Power  over  trust  property.      .  .        pp.  70-94 

CHAPTER   V. 

MUNICIPAL  CHARTERS. 

General  Municipal  Powers  — Their  Nature  and  Construction. 

Charters  defined.  Judicially  noticed.  Proof  of  corporate  existence;  user; 
legislative  recognition.  Repeals  and  amendments.  General  laws  and 
special  charters;  conflict;  construction. 

Extent  of  power ;  limitations;  canons  of  construction.  Usage  as  affecting 
municipal  powers.  Discretionary  powers  not  subject  to  judicial  control. 
Public  powers  and  trusts  not  capable  of  delegation.  Legislative  powers 
incapable  of  surrender.  Mandatory  and  discretionary  powers ;  difference 
defined  and  illustrated.  Revenues  exempt  from  judicial  seizure.  Gar- 
nishment.        .        . pp.  95-115 

CHAPTER  VI. 

MUNICIPAL  CHARTERS   (CONTINUED). 

Special  Powers  and  Special  Limitations. 

1.  Wharves. 

2.  Ferries. 

3.  Borrowing  Money. 

4.  Limitation  on  power  to  become  Indebted. 

5.  Rewards  for  Offenders. 

6.  Public  Buildings! 

7.  Police  Powers  and  Regulations. 

8.  Prevention  of  Fires. 

9.  Quarantine  and  Health. 

10.  Indemnifying  of  Officers. 

11.  Furnishing  Entertainments. 


TABLE   OF   CONTENTS,-  XI 

12.  Impounding  Animals. 

13.  Party  Walls. 

•  14.    Public  Defence. 

15.  Aid  to  Eailway  Companies,  and  herein  of  the  constitutional  power 
of  the  legislature ;  cases  cited.  Power  must  be  express.  Construction 
of  special  grants  of  power;  cases  cited pp.  116-150 

CHAPTER  VII. 

DISSOLUTION   OF   MUNICIPAL  CORPORATIONS. 

In  England:  1,  by  act  of  parliament;  2,  by  loss  of  integral  part;  3,  by 
surrender;  4,  by  forfeiture.  These  modes,  except  the  first,  not  applica- 
ble in  this  country.  Effect  of  dissolution  on  property  and  debts.  Author- 
ities reviewed.    Revival  of  corporation  and  its  effect.        .      pp.  151-159 

CHAPTER  VIII. 

CORPORATE   NAME,   BOUNDARIES,  AND   SEAL. 

Corporate  name.  Name  as  respects  grants  and  contracts.  Name  as  respects 
suits.  Corporate  boundaries.  Legislative  enlargement  of  territorial  limits. 
Territorial  division — its  effect  on  property  and  rights.  Corporate  seal; 
proof  of. :        .        pp.  160-173 

CHAPTER  IX.  '       ' 

MUNICIPAL   ELECTIONS  AND  OFPIOEHS. 

1.  Municipal  Popular  Elections. 

2.  Special  tribunal  to  determine  election  contests  for  municipal-  offices. 

3.  Power  to  create  and  appoint  municipal  officers. 

4.  Oath  and  Official  Bond. 

5.  Duration  of  Official  term. 

6.  Vacancies  in  Municipal  Offices. 

7.  Refusal  to  serve  in  office. 

8.  Resignation  of  Municipal  Office. 

9.  Compensation  of  Municipal  Officers. 

10.  Liability  of  the  corporation  to  the  officer. 

11.  Liability  of  the  officer  to  the  corporation  and  io  others. 

12.  Amotion  and  Disfranchisement.         ....       pp.  174-229 

CHAPTER  X. 

CORPORATE   MEETINGS. 

1.  Common  law  requisites  of  a  valid  corporate  meeting. 

2.  Notice  of  corporate  meetings  at  common  law  and  under  the  English 
Municipal  Corporation  Act. 

3.  New  England  town  meetings;  requisites  of  notice  and  power  of  ad- 
journment. 


Xll  TABLE   OS1   CONTENTS. 

4.  Constitution  and  meetings  of  councils  or  of  select  governing  bodies ; 
and  herein  of  quorums  and  majorities ;  of  integral  parts;  and  of  stated, 
special,  and  adjourned  meetings. 

5.  Mode  of  proceeding  when  convened pp.  230-256 

CHAPTER  XI. 

COEPOBATE  RECORDS  AND   DOCUMENTS. 

Means  of  evidence :  Clerk  pro  tern.;  power  to  amend  records;  admissibil- 
ity of  parol  evidence.  Remedy  to  compel  delivery  of  books  and  records. 
Mandamus.  Replevin.  Inspection  of  corporate  documents  and  records. 
Records  as  evidence.    Originals  and  authenticated  copies.      pp.  257-269 

CHAPTER  XII. 

MUNICIPAL  ORDINANCES,   OR  BY-LAWS. 

1.  Definition,  general  nature,  and  common  law  requisites  of  ordinances. 

2.  Signing,  publication,  and  recording. 

3.  Power  to  impose  fines,  penalties,  and  forfeitures. 

4.  On  whom  binding,  and  notice  thereof. 

5.  Ordinances  relating  to  the  licensing,  regulating,  and  taxing  of  amuse- 
ments and  occupations,  including  the  sale  of  intoxicating  liquors. 

6.  Ordinances  relating  to  public  offences. 

.7.  Ordinances  relating  to  the  public  health,  safety,  and  convenience; 
herein  of  hospitals,  cemeteries,  and  burials ;  nuisances ;  markets  and 
inspection  regulations ;  dangerous  occupations  and  practices ;  and  of  the 
police  powers  and  general  welfare  clause  in  charters. 

8.  Mode  of  enforcing  ordinances;  herein  of  actions  and  prosecution 
and  their  nature ;  mode  of  pleading  ordinances ;  requisites  of  com- 
plaints to  enforce  ordinances;  construction;  defences;  evidence, 
&c ' pp.  270-348 

CHAPTER  XIII. 

MUNICIPAL  COURTS. 

In  England,  and  at  common  law.  American  corporation  courts.  Consti- 
tutional provisions.  Construction.  Right  to  jury  trial.  Competency  of 
citizens  to  be  local  judges,  jurors,  and  witnesses.  Summary  convictions, 
when  valid.  Indictable  offences.  Distinction.  Extent  of  jurisdiction. 
Jury  on  appeal.    Review  by  Superior  Courts.    .       .       .       pp.  349-363 

CHAPTER  XIV. 

CONTRACTS. 

1.  Extent  of  power^to  contract,  and  how  conferred. 

2.  Mode  of  exercising  the  power. 

3.  Seal  not  necessary  unless  required ;  may  be  concluded  by  vote  or 
ordinance. 


TABLE    OF   CONTENTS.  X1U 

4.  When  bound  by  contracts  made  by  agents;  mode  of  execution. 

5.  Contracts  beyond  corporate  powers  void ;  ultra  vires  a  defence. 

6.  Implied  contracts ;  when  deducible. 

7.  Ratification  of  unauthorized  contracts. 

8.  Provisions  requiring  letting  to  the  lowest  bidder. 

9.  Contract  of  suretyship. 

10.  Rights  and  liabilities  as  respects  authorized  contracts ;  cases  men- 
tioned. Power  to  settle  disputed  claims ;  to  give  extra  compensation ; 
to  employ  attorneys. 

11.  Contracts  for  public  works;  rights  of  contractors. 

12.  Same :  corporate  control  under  stipulation. 

13.  Evidences  of  indebtedness;  negotiable  bonds. 

14.  Ordinary  warrants  or  orders ;  their  legal  nature. 

15.  Liability  of  indorsers  thereof. 

16.  Payment  and  cancellation  of  orders  and  warrants. 

17.  Rights  and  remedies  of  holders  thereof. 

18.  Defences  thereto ;  ultra  vires ;  fraud;  want  of  consideration. 

19.  Orders  payable  out  of  particular  fund. 

20.  Interest  on  corporate  indebtedness. 

21.  Railroad  aid  bonds;  course  of  decision  in  United  States  Supreme 
Court. 

22.  Leading  cases  in  the  National  Supreme  Court  on  the  subject  noticed. 

23.  Decision  in  State  Courts  referred  to.    Author's  conclusions  stated. 

pp.  364-414 

CHAPTER  XV. 

CORPORATE    PROPERTY. 

History  of  corporate  capacity  to  take,  hold,  and  dispose  of  property.  Re- 
sult stated.  Grants  to  corporations ;  statutes  of  mortmain ;  charter  the 
source  of  power;  power  to  take  by  devise  and  gift;  to  hold  in  trust; 
Girard's  will;  McDonough's  will;  McMicken's  will;  Mullanphy's  will; 
power  to  act  as  charitable  trustees ;  effect  of  corporation  exceeding  its 
power  to  hold  property;  alienation  of  property;  sales  on  execution; 
mode  of  alienation ;  mortgages.  Leases.  Conveyances  and  their  requi- 
sites     pp.  415-437 

CHAPTER  XVI. 

EMINENT   DOMAIN. 

General  nature  of  the  power.  Constitutional  restrictions;  legislature  may 
authorize  fee  to  be  taken  for  streets  and  public  places,  but  no  more  in 
amount  than  necessary ;  dower  in  streets  and  public  places;  public  use; 
parks ;  public  squares ;  legislative  determination  of  public  character  of 
use,  how  far  conclusive ;  authority  delegated  to  municipalities ;  construc- 
tion of  power.  Must  be  strictly  pjirsued ;  illustrations;  right  of  munici- 
pal authorities  to  abandon  proceedings;  when  right  ceases;  remedy  of 
landowner;  appeal;  certiorari;  injunction;  special  remedies ;  compensa- 
tion, when  to  be  made ;  damages  and  benefits ;  assessments  upon  abut- 
ters; tribunal  to  determine  amount;  when  by  jury;  amount  of  damages; 
snecial  benefits  and  injuries;  rules  to  meisu:?  .'ama  lea  state .!.  pp.  138-474 


XIV  TABLE    OF   CONTENTS. 

CHAPTER    XVII. 

DEDICATION. 

1.  Importance  of  the  doctrine  of  dedication. 

2.  Statutory  and  common  law  dedications 

3.  Common  law  dedication ;  rationale  and  requisites. 

4.  Extent  of  dedication  as  respects  the  donor. 

5.  Who  may  dedicate ;  intent;  how  established. 

6.  Effect  of  long  use  and  acquiescence. 

7.  Effect  of  platting  and  sale  of  lots. 

8.  Acceptance  by  the  public ;  when  and  for  what  purpose  necessary. 

9.  Dedication  of  public  squares  and  their  uses. 

10.  Dedications  for  other  purposes. 

11.  Alienation  and  change  of  use. 

12.  Reverter;  misuser;  remedy pp.  475-499 

CHAPTER  XVIII. 


Legislative  control.  Its  extent.  Legalization  of  obstructions.  Remedy  by 
indictment;  in  equity,  and  by  action.  Remedy  of  corporation  by  eject- 
ment and  effect  of  judgment.  Vacation  of  streets.  Prescription  and  ad- 
verse possession.  Statute  of  limitations.  Highways  and  roads  within 
city  limits.  Municipal  authority  over  streets  and  their  uses.  Power  to 
improve  and  graduate ;  exclusive  privileges  therein.  Gas  pipes;  water 
pipes;  telegraph-poles.  Openings  under  sidewalk.  Railroads  in  streets : 
extent  of  legislative  authority.  Delegated  authority,  how  conferred  and 
construed;  rate  of  speed.  Horse  railways  in  streets :  extent  of  municipal 
power;  its  construction  and  limitations;  rights  and  liabilities  of  the  com- 
pany; whether  an  additional  servitude;  cases  cited;  conclusions  stated. 
Bridges :  Construction,  repair,  and  liability.  Streets  primarily  for  public 
travel  and  use.  Limitations  on  free  transit  and  use.  Building  materials 
on  streets  and  sidewalks ;  necessary  temporary  obstructions;  projecting 
shutters  and  doors pp.  500-555 

CHAPTER  XIX. 

MUNICIPAL  TAXATION   AND   LOCAL  ASSESSMENTS. 

Nature  of  taxing  power.  Power  may  be  delegated  to  municipalities.  Re- 
strictions in  Federal  Constitution.  State  constitutional  provisions.  Local 
assessments  to  pay  for  local  improvements.  Constitutionality  of  special 
assessments.  Provisions  of  State  Constitutions  construed.  Municipal 
power  to  tax  must  be  clear.  Construction  of  grants  of  this  character. 
Mode  of  exercising  power.  General  f  evenue  laws,  how  far  applicable  to 
municipalities  with  special  charters.  Exemption  from  taxation.  "Tax" 
and  "assessment"  distinguished.  Power  of  municipalities  to  tax  inca- 
pable of  delegation.    Is  a  continuing  one.    What  property  may  be,  and 


TABLE    OF   CONTENTS.  XV 

what  must  be,  taxed.  Taxation  of  trades  and  occupations.  Municipal 
taxation  of  rural  lands.  Paving  streets.  What  the  power  to  pave  in- 
cludes. Conditions  and  mode  of  exercise.^Drains  and  sewers.  Mode  of 
collecting  general  and  special  taxes ;  ipp.  556-617 


CHAPTER  XX. 

MANDAMUS. 

1.  Definition  and  General  Nature  of  the  Remedy. 

2.  When  the  Writ  will  be  Granted  or  Refused. 

8.    Mandatory  and  Discretionary  Powers  as  respects  the  Remedy  by 
Mandamus.  , 

4.  Mandamus  as  respects  Municipal-  Elections  and  Officers ;  To  Take 
Office  ;  To  Admit  to  Office  ;  To  Restore  to  Office. 

5.  To  obtain  Possession  and  Inspection  of  Corporate  Books  and  Papers. 

6.  To  Enforce  Duties  Toward  Creditors. 

7.  Application  for  the  Writ — Affidavits — Relator — Rule. 

8.  Form,  Direction,  and  Service,  of  the  Writ. 

9.  The  Return  and  subsequent'proceedings. 

10.  Peremptory  Writ. 

11.  Attachment. 

12.  Judgment pp.  618-664 


CHAPTER  XXI. 

QUO   WAKRANTO. 

Nature  of  proceeding.  Usurpation  of  municipal  office  and  franchises. 
Validity  of  municipal  elections ;  when  tested  on  mandamus  to  admit,  and 
when  by  quo  warranto.  Office  of  Writ  or  Information.  When  Writ  or 
Rule  granted ;  when  not.    Judgment pp.  665-676 


CHAPTER  XXII. 


REMEDIES  TO  PREVENT,  CORRECT,  AND  REDRESS,  ILLEGAL  CORPORATE  ACTS. 

1.  In  Equity:  When  injunction  will  lie;  At  whose  suit;  Right  of  attor- 
ney general ;  Of  the  citizen  and  tax-payer ;  When  equity  will  interfere 
to  prevent  abuse  or  misuse  of  corporate  powers ;  Illegal  appropriations 
and  illegal  taxes. 

2.  Certiorari:  When  the  proper  remedy;  When  it  lies;  When  not; 
What  may  be  examined  under. 

3.  Prohibition:  When  it  may  be  resorted  to,  and  the  nature  of  the 
remedy. 

4.  Indictment:  When  it  lies  against  the  corporation,  and  when  against 
its  officers 677-700 


XVI  TABUS    OF   CONTENTS. 

CHAPTER  XXIII. 

CIVIL  ACTIONS  AND  LIABILITIES. 

Actions  on  Contracts.    Sees,  749-751. 

1.  Liability  on  Contracts — Ultra  Vires  as  a  defence. 

2.  Liability  on  Implied  Contracts,  generally. 

3.  For  Illegal  Taxes,  etc.,  compulsorily  collected. 

Actions  of  Torts.    Sees.  752-802. 

4.  No  liability  in  respect  to  the  exercise  of  discretionary  or  legislative 
powers. 

5.  Nor  for  imperfect  execution  of  by-laws, 

6.  Nor  for  misconstruing  extent  of  public  powers. 

7.  Nor,  without  a  statute  creating  it,  for  buildings  demolished  to  pre- 
vent fire. 

8.  Nor  for  property  destroyed  by  mobs. 

9.  Implied  Liability  for  neglect  of  corporate  duty. 

10.  Distinction  in  this  respect  between  quasi  corporations  and  municipal. 

11.  Liability  for  torts  of  officers  and  agents. 

12.  Not  liable  for  acts  ultra  ures — illustrations. 

13.  But  liable  for  authorized  torts  not  ultra  vires. 

14.  Respondeat  Superior,  when  applicable. 

15.  Respondeat  Superior :    Wno  are,  and  who  are  not,  corporate  officers. 

16.  Liability  for  neglect  of  corporate  duty. 

17.  Liability  in  capacity  of  property  owner. 

18.  No  liability  for  acts  authorized  by  charter  or  statute. 

19.  Streets :    May  grade  and  change    rade  of  streets. 

20.  Streets:    Remedy  therefor,  if  given,  must  be  followed. 

21.  Streets:    Liability  for  unsaie  streets  and  sidewalks. 

22.  Defective  Highways:    New  England  statutes  and  decisions  on  this 
subject. 

23.  Streets:    General  liability  of  municipal  corporations  proper  for  unsafe 
streets. 

24.  Streets :    Liability  of  authoi  of  defect  or  obstruction. 

25.  Streets:    Defects  caused  by  "•ilroads. 

26.  Streets :    Liability  as  to  water  courses  and  surface  water. 

27.  Streets:    Drains  and  Sewers    -liability  in  respect  to.        pp.  701-776 


TABLE  OF  PRINCIPAL  CASES  CITED. 


[the  references  are  to  the  pages.] 


A 

Page. 

Abbott  v.  Herman  382 

v.Mills  506 

v.  Yost  .  213 

Abby  v.Billips  172,369 

Aberdeen  v.  Saunderson  80,  94 

Adams  v.  Beale  617 

v.  Carlisle  752 

v.  Farnsworth  378 

v.  Hill  248 

v.  Mack  267 

'   v.  Mayor         279,285,306,582 

v.  Newfane  458 

v.  Railroad  Co.       414,  434,  538 

v.  Rivers  525 

v.WMttlessey  213 

v.  Walker  771 

Adley.  y.  Reves  294,  298,  338,  339 

Adriance  v.  New  York  685 

Adsit  v.  Brady  214 

African  Society  v.  Varick         162, 165 

Aiken  v.  Railroad  Company  126 

Albany  v.  Cunliff  375 

Albright  v.  Town  Council  3613 

Alcorn  v.  Horner  64,  570 

v.  Philadelphia  731,  734 

Alden  v.  Pinney  508 

v.  Rounsville  170 

Aldermen  v.  Finley  96 

Aldrich  v.  Howard  318,  321,  336 

v.  Londonderry  704 

Alexander  v.  Baltimore 

451,  460,  467,  559,  560,  569,  679 

Alexander  v.  Heller  613 

v.  Hoyt  213 

v.  Milwaukee  741,  744 

v.  Railroad  Company    117 

Alexandria  v.  Alexandria  101 

Allegheny  City  v.  McClurken  375,  395 

Allegheny  County  v.  Van  Campen  192 

v  Shaw  719 

Allegheny  v.  Railroad  Co.        523,  537 

Allen  v.  Cooper  248,  382 

v.  Decatur  727 

v.McKean  72,209 

v.Taunton  41,42,137 

v.  Turner  685 


Page. 
Allentown  v.  Seager  706 

All  Saints  Church  v.  Lovett  160 

Altemus  v.  Mayor  386 

Alton  v.  Madison  County  704 

Alton  v.Mulledy'  369,378 

Alvez  v.  Henderson  431 

Alvord  v.  Ashley  477 

v.  Barrett  214 

Amboy  v.  Sleeper  310 

Ambrose  v.  State  313 

Amelung  v.  Seekamp  506 

American  &c.  Company  v.  Buffalo  583 
American  Print  Works  v.  Law- 
rence 214 
American  Ins.  Co.  v.  Oakley  377 
Ames  v.  County  137 
Amesbury  v.  Insurance  Co.  347 
Amey  v.  Allegheny  City 

134, 145,  149,  286,  288,  581 

Amey  v.  Supervisors  214,  622,  645,  646 

Anderson  v.  Draining  Co.  448 

v.  State  685,  716 

Andover,  &c.  v.  Gould  525,  746 

Andover  v.  Grafton  41,  373,  394 

v.  Sutton  552 

Andrews  v.  Insurance  Co.  277 

v.  United  States        204,  206 

Annapolis  v.  State  69 

Anthony  v.  Adams         40,  41,  724,  726 

v.  Cleveland  375 

Antones  v.  Eslau  478,  479 

Appleby  v.  Mayor  375,  384 

Applegate  v.  Ernst  595 

Arbegust  v.  Louisville  598 

Argenti  v.  San  Francisco 

104,  369,  379,  380,  386,  392,  572 
Arkwright  v.  Cantrell  201 

Armington  v.  Barnet  440 

Armstrong  v.  Commissioners  72 

Arnold  v.  Bridge  Company     446,  473 

v.  Shields  460,  696 

Arnoult  v.  New  Orleans  69, 167 

Asbrook  v.  Commonwealth     138,  318 
Ash  v.  People 

125,  302,  303,  322,  324,  326 
Asheville  v.  Means    '  577 

Ashton  v.  Ellsworth  272,  292 


XV111 


TABLE   OF   CASES    CITED. 


Page. 
Aspinwall  v.  Knox  County  412 

v.  County  of  Jo  Daviess 

88, 148,  407,  413,  579 

Atchison  v.  Barlow  66 

',    v.  Butcher  93,147,407 

v.  Challiss  770,  772,  773 

v.  King  760 

v.  Twine  716 

Atkins  v.  Randolph  89,  90 

Atlanta  v.  White  322 

Attorney  General  v.  Aspinwall 

181,  362,  681 
v.  Plymouth 

678,  681 
v.  Dublin  680 

v.  Earl  Claren- 
don 229 
v.GasComp'y  321 
v.  Gower  156 
v.  Heclis  680 
v.  Heishon 

503,  504,  505 
v.  Insurance  Co.  395 
v.  Kerr  161 

v.  Leicester  161, 681 
v.  Lichfield 

129,  181,  681 
v.  Liverpool  680 
v.  Lock  111 

v.  New  York  110 
v.  Patterson  678 
v.  Peterson  460 
v.  Plank  Road 

Company  591 
v.Poole  181, 362,681 
v.  Railroad  Co.  537 
v.  Rye  i63 

v.  Shrewsbury 

153,  428 
v.  TJtica  Insur- 
ance Co.        665 
v.  Wilson    161,  681 
v.  Worcester       161 
Atwater  v.  Baltimore  732 

Auditor  v.  Davies  42 

Augusta  Bank  v.  Augusta  145 

Augusta  v.  Leadbetter  40,  388 

v.  Perkins  431,  499 

v.  Railroad  Company       595 
Aull  v.  Lexington  315 

Aurora  v.  Wesi 

92,  ll£,  145, 147, 148,  3$4, 

408,  409,  410 
Austin  v.  Murray  ia;_ 

137,  283,316,330,^7 

B 

Bab  v.  Clerke  298 

Babbitt  v.  Savoy  140 

Bacon  v.  Boston  555,  749,  ?34>  758 


Page' 
Bacon  v.  Robertson 

152,  154,  156,  157, 158 
Backman  v.  Charlestown  377,  381 
Bagg  v.  Detroit  548,  685 

Bailey  v.  New  York 

83,  84,  213,  715,  722,  731,  738,  739 

Bailey  v.  Railroad  Company   501,  511 

Bailey  ville  v.  Lowell  388,  389 

Baird  v.  Bank  430 

Baker  v.  Boston  107, 108, 136,  724,  735 

v.  Chambles  371 

v.  Cincinnati  564,  707 

v.  Commonwealth  515 

v.  Johnston  623 

v.  Portland  273 

v.  State  214 

v.  St.  Paul  476,  477 

v.  Dtica  204,  392 

v.  Windham  140,  260 

v.  Young  232 

Baldwin  v.  Bangor  458 

Ballard  v.  Davis  248 

Ball  v.  Armstrong  554 

v.  Brigham  690 

v.  Winchester  718 

Baltimore  v.  Board  of  Police 

66,  73,  78,  188,  395,  579 
v.  Bouldin  606 

v.  Cemetery  Co.  586 

v.  Chase  614 

v.  Clunet 

273,  347,  443,  445,  460 
v.  Eschbach 

367,  368,  603,  724,  727 
v.  Gill  107, 131,  683 

v.  Horn  92, 445,  680 

v.  LefFerman  706 

v.  Marriott  626 

v.  Porter    680,  683,  687,  689 
v.  Potter  92 

v.  Poultney 

231,  247,  378,  715 
v.  Railroad  Company 

187,  595,  678,  680 

v.  Reynolds      367,  368,  382 

v.  Root  114 

v.  Turnpike  250 

v.  White 

117,119,120,121,122,123 

Bancroft  v.  Lynnfield  40, 140 

Baldwin  v.  Calkins  692 

Banett  v.  Henderson  583 

Bangor  v.  Lansil  771 

Bangs  v.  Snow  103 

Bank  v.  Bridges  101 

v.  Brown  64 

v.  Chilicothe  104, 127 

v.  City  Council  595 

v.  Dandridge 

190, 191,  262,  268,  377 


TABLE    OF    CASES    CITED. 


XIX 


Bank  v.  Davis  101 

v.  Dubuque  434,  435,  436 

v.  Dudley  595 

v.  Farmington  394 

v.  Gottschalk  371 

v.  Hamlin  268 

v.  Hart  269 

v.  Hines  564 

v.  Knoop  72 

v.  Lockwood  159 

v.  Mayor  729,  730,  735 

v.  Navigation  Co.  394 

v.  Mies  430 

v.  Patterson 

173,  371,  372,  373,  377,  381 
v.  Petway  197 

v.  Smeds  367 

v.  Supervisors  140,  677,  688 

v.  Town  Council  595 

v.  Wister 
Bank  of  Inland  v.  Evans  172 

Bank  of  Rome  v.  Bome 

64,  68,  145, 146,  147,  411 
Bank,  &c.  v.  Railroad  Co.  172,  394 
Banks  v.  Ogden  477 

v.  Porteaux  430 

Bankhead  v.  Brown  449,  450 

Banton  v.  Wilson  636 

Barber  Surgeons  v.  Petson  342 

Barber  v.-  Roxbury  751 

Barclay  v.  Howell's  Lessee 

499,  504,  512,  525 

Bardwell  v.  Jamaica  551 

Barker  v.  Loomis  128 

v.  Pittsburg  204 

v.  State  600 

Barlett  v.  Crosier  214 

Barnes  v.  Achison  577 

v.  Barnes  97 

v.  Beloit  689 

Barney  v.  Bush  210 

Barnett  v.  Newark  286 

Barnett  Township  v.  Jefferson  Co.  170 

Baron  v.  Baltimore  44, 122,  769 

Barr  v.  Deniston  684,  687 

Barre  v.  Greenwich  176 

Barrett  v.  Brooks  20,  552 

v.  Schuyler  County  394 

v.  Henderson  590 

Barry  v.  Lowell  735,  771,  773,  774 

v.  Merchants  Ex.  Co.  128 

Barter  v.  Commonwealth 

280,  339,  353,  357,  360,  522,  526 
Bartho  v.  Salter  207 

Bartlett  v.  Crozier  551,  645 

Barto  v.  Himrod  ,  64,  146 

Barton  v.  New  Orleans     203,  204,  315 
v.  Syracuse 

736,  761,  772,  773,  774 
Bass  v.  Columbus  412 


Page. 

Bass  v.  Fontleroy  78,  85,  94 

Bassett  v.  Barber  638 

v.  Porter  97 

Bateman  v.  Mayor  366,  367 

v.  Megowan  181,  362 

Bates  v.  Plymouth  265,  649 

Bath  County  v.  Amy  645 

Bath  v.  County  Commissioners      261 

Batteau  v.  Philadelphia  617 

Battle  v.  Mobile  559 

Batty  v.  Duxbury  768 

Baumgard  v.  Mayor  729 

Baxter  v.  Commonwealth  293, 298, 310 

v.  Winooki  Turnpike  Co.    749 

Beach  v.  Haynes  431 

Beachy  v.  Lamkin  657,  663 

Beals  v.  Amador  Co  573 

Bean  v.  Jay  239,  388 

Bean  v.  Tompson  211 

Beard  v.  Brooklyn  '  390, 392 

Beardsley  v.  Smith  433,  641,  768 

Beatty  v.  Gilmore      505,  759,  762,  765 

v.  Knowles  96,  576 

v.  Kurts  479 

Beaufort  v.  Duncan  437 

Bechtel  v.  Carslake  506,  507 

Beck  v.  Hanscom  197,  250,  251 

Beekman  v.  Railroad  Co.  468 

Beers  v.  Arkansas  42 

v.  Beers  361,  467 

v.  Botsford  718 

v.  Phoenix  Glass  Co.  128 

Beesman  v.  Peoria  350,  351 

Belcher  v.  Farrer  315 

Belknap  v.  Rheinhart  212 

Bell  v.  Foutch  552 

v.  Railroad  Co.  498 

Bell  Co.  v.  Alexander  428 

Belleville  v.  Stokey  477 

Bellows  v.  Bank    "  159 

Bemis  v.  Beckel  168 

Benbow  v.  Iowa  City  641 

Benedict  v.  Denton  173 

Benedict  v.  Goit  743 

Benefield  v.  Hines  306 

Benjamin  v.  Wheeler  107, 740, 742, 746 

Bennett  v.  Birmingham    302,  575,  596 

v.  Fisher  445 

v.  People  302 

v.  Buffalo  617,  705,  730 

v.  New  Orleans 

710,  731,  740,  770 
Benoist  v.  Carondolet  173 

Benoist  v.  St.  Louis  581,  600 

Uenoit  v.  Conway  106,129 

Benson  v.  Albany  68 

Benson  v.  Mayor  126 

Bentz  v.  Armstrong  771 

Bergen  v.  Clarkson 

135,252,294,298,614 


XX 


TABLE   OF    CASES    CITED. 


Berks  Co.  v.  Myers 
Berlin  v.  Gorham 
Berliner  v.  Waterloo 
Berryman  v.  Wise 
Bestor  v.  Powers 
Bethune  v.  Hughes 
Beurozohn  v.  Mayor 
Beygeh  v.  Chicago 
Biddle  v.  Shippen 
Biddle  v.  Willard 
Bigelow  v.  Hillman 

v   Lewisville 


Page. 

164 

63 

412 

211 

173 

322,  327 

317 

612 

476 

197,  198,  628 

254,  274 

384 


v.  Perth  Amboy  262, 263, 388 
v.  Randolph  720,  721 

Bills  v.  Kinson  143 

Bischer  v.  Richards  551 

Bishop  v.  Cone  258 

Bishop  v.  Macon  713 

Bissell  v.  Jeffersonville 

93,  254,  262,  403,  406,  407,  411,  412 

Bissell  v.  Railroad  Co.        377, 509, 534 

Black  v.  Railroad  Co.  533,  535 

Blackburn  v.  Walpole  239 

Black  v.  Railroad  Co.  506 

Blackett  v.  Blizard  232 

Blackstone  v.  Taft  170 

Blackstone  v.  White  96 

Bladen  v.  Philadelphia    132,  203,  369 

Blair  v.  Forehand  143 

Blake  v.  Railroad  Co.  158 

v.  St.  Louis  757,  758 

v.Sturdevant  211 

v.  Ferris  762,  763 

Blanc  v.  Mayor  590 

Blanchard  v.  Bissell  167,  271,  286 

v.  Blackstone  371 

v.  Porter  122 

Blanding  v.  Burr  64, 73, 91, 570, 572, 579 

Bleeker  v.  Ballou  586 

Bleu  v.  Bear  River  Co.  380 

Bliss  v.  Ball  509,  525 

Bliss  v.  Kraus  570 

Blyth  v.  Birmingham  Water  Works 

531 
Block  v.  Jacksonville  287,  307 

Blodgett  v.  Boston  720,  750 

Bloodgood  v.  Mohawk  &  Hudson  Rail- 
road Company  444,  448,  451 
Bloomington  v.  Wahl  327 
Board  v.  Edson                                 499 
v.  Grant                          639, 661 
v.  Municipality  75 
v.  Pooley                                300 
v.  Strader                               551 
Boardman  v.  Hayne                       213 
Bob  v.  State                                       690 
Bodman  v.  American  Tract  Soc.     164 
Bodwic  v.  Fennell                     344,  345 
Bogart  v.  Mayor                               695 
Bogert  v.  Indianapolis             316,  317 


Page- 
Boggs  v.  Hamilton  214 

Boiling  v.  Petersburg  432,  509,  510 
Bolte  v.  New  Orleans  291 

Bolton  v.  Crowther  214 

Bonesteel  v.  Mayor  370,  384,  392 

Broom  v.  Utica  318,  726 

Bond  v.  Hiestand  100, 614 

v.  Kenosha 

565,  585,  587,  588,  689 
v.  Newark        •        391,  610,  678 
Bonner  v.  State  633,634 

Boone  v.  Utica  375 

Booth  v.  State  336 

v.  Woodbury  144 

Boring  v.  Williams  360 

Borough  v.  Shorts  607 

Boston,  &c.  Glass  Co.  v.  Boston  706 
Boston  Glass  Manuf.  v.  Langdon  153 
Boston  v.  Lecraw  121 

Boston  Mill  Corporation  v.  Newman 

449 
Boston  v.  Monroe  705 

v.  Richardson 

509,  525,  526,  528,  542 

v.  Shaffer        268,  301,  303,  304 

v.  Shaw  283,  525,  602,  608,  746 

Turnpike  v.  Pomfret 

257,  259,  262 

Water  Power  Co.  v.  Boston 

705 

v.  Worthington  767 

Bosworth  v.  Budgen  349 

Bouldin  v.  Baltimore  580,  603,  604 
Bow  v.  Allenstown  18,  62,  98,  418 

Bowen  v.  Morris  372 

Bower  v.  State  Bank  162 

Bowerbank  v.  Morris  208 

Bowlin  v.  Furman  431 

Bowman  v.  St.  John  292 

Boyce  v.  Russell  623 

Boyland  v.  Mayor  375,  726 

Boyden  v.  Brookline  204 

Boy ter  v.  Dodsworth  209 

Bozant  v.  Campbell  280, 315 

Bradford  v.  Chicago  707 

Bradley  v.  Richmond  114 

Bradshaw  v.  Omaha  100 

Brady  v.  Insurance  Co.  336 

v.  Mayor 

375,  380,  383,  384,  749, 750 
v.  Supervisors  390 

Brailey  v.  Southborough  749 

Brainard  v.  Railroad  Co.  537 

Brainbridge  v.  Sherlock  120 

Braintree  v.  Battles  96 

Brander  v.  Judges  628 

Branham  v.  San  Jose  367,383,434,  511 
Brashear  v.  Mason  627 

Bray  v.  Wallingford  114,  719 

Brewer  v.  New  Gloucester  718 


TABLE    OF   CASES    CITED. 


XXI 


Page. 

Brewster  v.  Harwich  170 

v.  Hyde  236 

v.  Newark  605 

v.  Syracuse    90,  91,  557,  568 

Bridge  Co.  v.  Clarksville  440 

v.  Lowell  ,      440 

Bridge  v.  Gage  135 

v.  Lincoln  215 

Bridges  v.  Griffin  596 

Bridgeport  v.  Railroad  Co. 

93,  103.  107,  144,  147,  367,  375,  376 


Briggs  v.  Boat 

v.  Murdock 

v.  Whipple 
Bright  v.  Hewes 

v.  Supervisors 
Brightman  v.  Kirner 
Brimmer  v.  Boston 
Brinkmeyer  v.  Evansville 
Brine  v.  Railway  Co. 
Briscoe  v.  Bank 
Bristol  v.  New  Chester 
Briton  v.  New  York 
Brittain  v.  Newland 
Broadhead  v.  Milwaukee 
Brocas  v.  Mayor 
Bronson  v.  Kinsie 
Brookline  v.  Westminster 
Brooklyn  v.  Cleves 
v.  Patchen 
v.  Tonylee 
Browner  v.  Appleby 

v.  New  York 
Brown  v.  Duplesis 

v.  Heath 

v.  Hunn 

v.  Insurance  Co. 

v.  Lowell 


96. 


380 

237 

140,  141 

390 

206 

565,  586 

110 

733 

740  771,  775 

42 

63,  168 

110 

164 

144 

267 

87 

166 

327 

467 

310 

63,97 

685,  739 

543,  544 

114 

336 

154 

742 

v.  Manning     477"  499,  507,  685 

v.  Maryland  561,  596 

v.  Rundlett  212 

v.  Smith  184 

Browning  v.  Railroad  Co.  460 

v.  Springfield  757 

Brunette  v.  Mayor  305 

Brunswick  v.  Litchfield  90 

Bryan  v.  Bates  189,  344 

v.  Cattell 

202, 203, 620,  628, 649,  650 

Bryant  v.  McCandless  429 

Bryson  v.  Philadelphia  110 

Bucklee  v.  Brown  124 

Buckwall  v.  Story  578,  615 

Buell  v.  Ball  274,  600 

v.  Buckingham  232,244,246,  248 

Buffalo  v.  Halloway  391,  762 

v.  LeCouteulx  583 

v.  Webster 

284,  299,  300,  322,  326 
Buffette  v.  Railroad  Co.  702 


Bulkley  v.  Eckhart 
Bull  v.  Read 
Bullock  v.  (ieomble 
Bulls  v.  Sims 
Bulow  v.  City  Council 
Burden  v.  Stein 
Burgess  v.  Pue  211, 

v.  Jefferson 
Burham  v.  Fon  du  Lac 
Burke  v.  Jeffries 
Burlington  v.  Kellar 
Burham  v.  Chicago 
Burke  v.  Elliott 
Burlington  v.  Gilbert 
Burnes  v.  Achison 

55,  64,  147,  149, 
Burnett  v.  Buffalo 
v.  Auditor 
v.  Sacramento 
Burnham  v.  Boston 
Burns  v.  Clarion  Co. 
v.  LeGrange 
v.  Railroad  Co. 
Burton  v.  Patten 

v.  Railroad  Co. 
Bush  v.  Beavan 

v.  Johnston 

v.  Shipman 

v.  Whitney 

Bushnell  v.  Insurance  Co 

Bussier  v.  Pray 

Butcher's  Co.  v.  Bullock 

v.  Mercy 
Butler  v.  Charlestown 
v.  Dunham 
v.  Milwaukee 
v.  Muscatine 
v.  Pennsylvania 
v.Toledo 
Buttrick  v.  Lowell 

83,  137,  188,  381, 
Butz  v.  Muscatine 

87,  148,  158,  403,  579, 
Byers  v.  Commonwealth 
334, 
v.  Olney 
v.  Trustees 


Page. 

114 

64,  559,  687 

297 

395 

595 

447 

251,  559,  560 

384 

114 

58 

298,  306 

601 

668 

744 

578,581,685 

577 

640 

572,  603 

753 

91 

350,  350,  691 

445 

668,  674 

546 

623 

764 

72,79 

435 

54 

206,  207 

292,  345 

299 

106,  369,  373 

145,  408,  412  . 

389 

600 

203 

611,  612 

715,  731,  732 

581,  638,  644 

335,  341,  356 
306 

307 


Cabot  v.Britt  261 

Cadden  v.  Eastwick  290 

Cady  v.  Watertown  370 

Cahill  v.  Insurance  Oo.  97 

Calais  v.  Dyer  552 

Calaveras  Co.  v.  Brockway  622 

Caldwell  v.  Alton  103,  322,  326 

Caldwell  v.  Harrison  250 

Caldwell  v.  Justices   18, 19, 145, 148, 560 
Calkins  v.  Baldwin  214 

Callagan  v.  Hallett  207 


xxu 


TABLE    OF    CASES    CITED. 


Callender  v.  Marsh 

525,  740,  742,  743,  745, 
Cambridge  v.  Cambridge'Railroad 

548, 
v.  Charleston  Railroad 

Cambridge  University  v.  Crofts 
Camden  v.  Allen  612, 

Camden  v.  Mulford     458,  603691, 
Campau  v.  Detroit  458,  467, 

Campbell  v.  Kenosha  69,  88, 

v.  Polk  County 
Canaan  v.  Derush 
Canal  Bank  v.  Supervisors 
Canal  Co.  v.  Railroad  Co.  101, 153, 
v.  Swann 
v.  State 
Canal  Trustees  v.  Haven 
Canton  v.  Nist 
Canal  Trustees  v.  People 
Carpenter  v.  Railroad  Co 
Cardigan  v.  Page 
Carleton  v.  Bath 
v.  People 
v.  Iron  Co. 
Carr  v.  North  Liberties 

111; 
Carr  v.  St.  Louis 
Carrol  v.  Mayor  301 

v.  Board  of  Police 
Carroll  v.  Siebenthaler 
v.  St.  Louis 
v.  Tyler 
v.  Tuscaloosa 
Carson  v.  Martin     '   603,  678,  691 

v.  Railroad  Co. 
Carter  v.  Harrison 

v.  Dow 
Case  v.  Hall 

v.  Moble 
Cass  v.  Bellows 

v.  Dillon 
Catholic  Society  v.  New  Orleans 
Caverly  v.  Lowell 
Gentral  Bridge  Corp.  v.  Lowell 
Chad  v.  Tilsed 
Chadbourne  v.  Newcastle 
Chaffee  v.  Granger  366, 

Chamberlain  v.  Burlington      148, 
V.Dover  238, 239, 258, 
v.  Sibley 
Chambers  v.  St.  Louis  94,417,422, 


509, 


170,  772, 
204,  205, 
,  597,  691, 
639, 

207, 


303,  304, 
96,  342,  343, 
134, 


Chance  v.  Temple  652, 

Chandler  v.  Bradish 
Chapin  v.  Osborn 

v.  Railroad  Co. 

v.  School  District    164, 
Chaplin  v.  Hill 
Chapman  v.  Brooklyn 
v.  Gordon 


746 
Co. 
697 
Co. 
699 
164 
614 
693 
468 
383 
395 
378 
128 
306 
389 
552 
510 
285 
648 
534 
237 
41 
244 
737 

773 
279 
092 
716 
208 
389 
207 
302 
693 
534 
215 
565 
335 
344 
257 
145 
707 
205 
240 
105 
715 
685 
386 
261 
628 
430 
653 
195 
624 
393 
429 
381 
568 
507 


Chapman  v.  Lowell  392 

v.  Miller  117 

Charity  Hospital  v.  Stickney  565 

Charles  v.  Hoboken  226,  247,  248 

Charles  River  Bridge  v.  Warren 

Bridge  124,  745 

Charlestown  v.  Chur         343,  344,  348 
Charlton  v.  Alleghany  City  743 

Chase  v.  Lowell  "      190,  205 

v.  Merrimac  Bank  718 

Chaslain  v.  Town  Council  306 

Chatfield  v.  Wilson  740 

Chattanooga  v.  State  697 

Cheany  v.  Hooser  167,  715 

Cheatham  v.  Shearn  318 

Cheenery  v.  Waltham  166 

Chess  v.  Birmingham  575 

Chemung  Canal  Bank  v.  Super- 
visors 368 
Chicago  v.  Evans  273.  248,  666 
v.  Halsey  432,  640 
v.  Rumpff  280,  305 
v.  Larned  574,  575,  587 
v.  Mayor  760 
v.  People  391 
v.  Powers  550,  552 
v.  Quimby  293, 329 
v.  Robbins 

533,535,732,763,764 

v.  Starr  760 

v.  Ward  612 

v.  Wheeler  455,  456 

v.  Wright     577,  578,  580,  615 

Child  v.  Boston  731,  772,  773,  774 

Childress  v.  Mayor  320 

Chilton  v.  Railway  Co.  298 

Chivers  v.  People  125, 126,  303 

Chisey  v.  Canton  720,  749 

Ghoquette  v.  Barada  436 

Christopher  v.  Mayor  384,  685 

Christy's  Administrators  v.  Saint 

Louis  706 

Church  (Baptist's)  v.  Railroad  Co.  502 
(Christ's)  v.  Woodward  237 
(Meth.  Prot.)  v.  Baltimore 

460,  467 
(M.  E.)  v.  Hoboken  504,  508 
(The  Pres.)  New  York 

110,  272,  316,  586 
(St.  Luke's)  v.  Slack  631 

Cincinnati  v.  Bryson        301,  302,  577 
v.  Buckingham 

296,  302, 322,  578 
v.  Evans  513 

v.  White 

477,  478, 509, 510, 526 
v.  Coombs  455 

v.  Gwynne 

101,272,285,360 
v.  Morgan  406 


TABLE   OF   CASES    CITED. 


XX111 


Page. 

Cincinnati  v.  Rice 

332 

v.  Walls 

122 

Cisco  v.  Roberts 

117 

City  v.  Alexander 

145 

v.  Church 

307 

v.  Burgen 

605 

v.  Ferry  Co. 

126 

v.  Given 

192, 209 

v.  Lamson         66, 88, 128, 394, 412 
v.  Wistor  605 

City  Council  v.  Baptist  Church 

148,  283,  307,  316 
v.  Moorehead  172 

v.  Payne  137,  189 

v.  Plank  Road 
103, 332, 333, 367, 376, 377 
v.  Pepper      299,  303,  355 
v.  Pinckney         589,  695 
v.  Seeba  343 

v.  Smidt  346 

v.  Condy  584 

v.  Corlies  346 

v.  Elford  336 

v.  Dunn  345 

v.  Techman  346 

v.  State  584 

v.St.  Philip's  Church  584 
v.  Gilmer740, 772, 773,775 
'  v.  Ahrens 

279,  283,  302,  307,  562 

v.  Goldsmith  279, 305, 328 

v.  King  299,  355 

City  Gas  Co.  v.  Thurber  594 

City  Railroad  Co  v.  City  Railroad  Co. 

536,  546,  550 

v.  Louisville 

545,  546,  594 

Claflin  v.  Hopkinton  141,  683 

v.  Iowa  City  115 

Clague  v.  New  Orleans  732 

Clapp  v.  Cedar  Co.  393 

v.  Hartford  96,  567,  606 

Clarke  v.  Bank  96 

v.  Farmers  &  Co.  173 

Clark  v.  City  145 

v.  Cuckfleld  Union  373 

v.  Davenport 

103,  104, 149,  581,  644 
v.  Des  Moines 

148, 375, 386, 394, 395, 407, 552 
v.  Dutcher  708 

v.  Fry  553,  764 

v.  Halleck  213 

v.  Janesville 

127,  134,  286,  393,  394 
v.  Lewis  142,  297 

v.  McCarthy  522 

v.  People  220,  669 

v.  Polk  Co.  375,  395 

v.  Pratt  436 


Page. 

Clark  v.  Rochester    56, 64, 68, 145, 154 

v.  School  Com.  114,  395 

v.  Syracuse  318,  321 

v.  Tuckett  348 

v.  Utica  469 

v.  Washington  109,  369 

v.  Wilmington  772 

Clay  v.  County  172,  411 

Clay  burg  v.  Chicago  736 

Clayton  v.  Heidelburg  695,  696 

Clemford  Co.  v.  Demorest  193 

Cleveland  v.  Gas  Light  Co.  318 

v.  Wick  465,  470 

Clerke  v.  Tucker  298,  614 

Clinton  v.  Railroad  Company 

89, 501, 502, 533, 534, 537, 538, 544, 548 

Clintonville  v.  Keeting  101,  307 

Clough  v.  Hart  389,  390 

v.  Unity  456 

Coates  v.  New  York  136,  316,  339,  344 

Cobb  v.  Kingman  170 

v.  Portland  732 

Coburn  v.  Elmwood  436 

Cochran  v.  McCleary 

184, 187,229,241,242,  243,  633,  665,666 

Cockburn  v.  Bank  266 

Cocke  v.  Halsey  197 

Codding  v.  Mansfield  134 

Coffin  v.  Field  142 

v.  Nantucket  109,  247,  713 

v.  Cockran  436 

v.  State  203 

Coggeshall  v.  New  Rochelle  428 

Cogswell  v.  Lexington  753 

Cohen  v.  Wigfall  175 

Coker  v.  Birge  318 

Colchester  v.  Brooke  152, 154,  156, 159 

v.  Godwin  348 

v.  Seaber 

152,154, 156, 158,  159 

v.  Lowton  431 

Cold  Spring,  &c.  v.  Tolland     165,  166 

Cole  v.  Green  433 

v.  Muscatine  743,  745,  746 

v.  Medina  709 

v.  Nashville  717,  727 

Coleman  v.  Railroad  Co.  542 

Coles  v.  County  72,  76 

v.  Trustees  232 

v.  Williamsburg  246 

Coles  Co.  v.  Allison  177,  346 

Colgrove  v.  Breed  210 

Collins  v.  Dorchester  269 

v.  Hatch  104,  276,  279,  285 

v.  Louisville  301,  329,  578, 580 

v.  State  198 

Cotton  v.  Hanchett  107,  552,  684 

Columbia  v.  Dukes  &  Marks  333 

v.  Harrison  339.  345 

v.  Hunt  291,  577,  578 


XXIV 


TABLE   OF   CASES    CITED. 


Page. 

Columbia  v.  Patterson 

366 

Columbus  v.  Arnold 

344 

v.  Grey 

122 

,123 

v.  Jacques 

504 

,505 

v.  Woolen  Mill  Co 

746 

Comer  v.  Folsom 

144 

Commissioners  v.  Ashville 

335 

v.  Boyd 

508 

v.  Bright 

394 

v.  Butt 

719 

v.  Cox 

375 

v.  Day 

395 

v.  Duckett  83,626,757 

v.  Gas  Co. 

278 

279 

v.  Harris  292, 

310 

313 

v.  Keller 

395 

v.  Lfcky 

249 

v.  Lynch 

623 

625 

v.  Mighels 

103 

719 

v.  Neil 

122 

v.  Nesbi-tt 

214 

v.  Nickols 

407 

v.  Patterson 

597 

v.  Perry 

210 

v.  People 

653 

v.  Powe 

315 

v.  Sandusky  Co. 

129 

v.  Tarver  250,659,660 

v.  Van  Sickle 

319 

v.  Williams 

448 

Commonwealth  v  Alburger 

476 

v.  Alleghany 

Co. 

432, 

619,  620, 

321, 

622, 

638,   643, 

649, 

650, 

651,  659,  660 

v.  Alger  117, 

120 

136 

v.  Arrison 

241 

v.  Athern 

265 

674 

v.  Bank 

241 

v.  Baxter 

183 

667 

v.  Bean    280 

335 

,343 

v.  Borden 

344 

v.  Boston 

531 

v.  Bowman 

324 

v.  Bread 

450 

v.  Briee 

719 

v.  Bussier 

219 

v.  Cambridge 

447 

v.  Charleston 

i 

451 

v.  Cluley  665,668,672 

v.  Comm'rs 

177 

250 

v.  Conely 

212 

v.  Cullen 

154 

v.  Curtis 

335 

v.  Dallas 

186 

352 

v.  Dearfield 

551 

v.  Dow 

307 

347 

v.  Dugan 

188 

v.  Duquet 

272 

v.  Ellis 

690 

Commonwealth  v.  Emery  360 

v.  Fahey 

316,  342,  343,  345 
v.  Fowler  670,  676 
v.  Garrigues  183,  667 
v.  Gas  Co.  283 

v.  Gay  343 

v.  Genther  209 

v.  German  Society . 

226, 228 
v.  Gill  669 

v.  Goodrich 

280, 316,  321 
v.  Guardians  219,  223 
v.  Hall  719 

v.  Hastings  188,  189 
v.  Henry  626,  627 
v.  Hitching  347 

v.  Hopkinsville  698 
v.  Ipswich  244 

v.  Jones 

175,  665,  672,  675 
v.  Johnson  623 

v.  Judges  65 

v.  Lancaster  254,  639 
v.  Leech 

180,  182,  183,  667 
v.  Lowell  Gas  Co.  594 
v.  Lyndall  660 

v.  Mann  180,  204 

v.  McCloskey 

181, 362,  667 
v.  McWilliams  144 
v.  Meeser 

182,  666,  667,  673 
v.  Millman  505 

v.  Milton  562 

v.  Montrose  59 

v.  Painter  64,  65 

v.  Passmore  535, 553 
v.  Patch  280,  284 

v.  Pennsylvania 

Institute  226, 227 
v.Perkins  144, 432,638 
v.  Philadelphia 

192,  224 
v.  Pindar  360 

v.  Pittsburg 

128,129,149,190,254 
414,581,619,521,626, 
638,  642,  643, 652, 653, 
655,  659,  671. 
v.  Proprietors  697 
v.  Railroad  Co. 

522,533,535,537,538, 
539,  545,  665,  671,  697 
v.  Read  355 

v.  Roark  360 

v.  Roxbury 

18,36,121,122,156 


TABLE   OF   CASES    CMED. 


XXV 


Commonwealth  v.  Rush    324, 503, 504 
v.  Ryan  355 

v.  Sherman's  Ad- 
ministrators     445 
v.  Small  633 

v.  Smead  675 

v.  Springfield  749 
v.  Stoddard 

282,  283,  302,  303 
304,  805,  330,  331 
V.  St.  Patrick's  So- 

eiety3l6,218,224 
v.  Taylor  661 

V.  Turner 

103,271,276,279,307 
v.  Smith  674 

v.  Swain  446 

v.  Union  Ins.  Co.  153 
v.  Wentworth  505 
v.  Woelper  175 

v.  Wolbert  193 

v.  Wood  476 

v.  Worcester 

99,  283,  330,  341 

COiie  v.  Hartford  527 

Con'nden  v.  Clerke  163 

Conner  v.  Bent  7"6 

v.  Mayor  76, 203,  205 

v.  New  Albany  ,    126 

Conboy  v.  Iowa  City         286,  342,  362 

Cone  v.  Hartford  570,  607,  609 

Congo  v.  New  Orleans  322,  ,325 

Cong  County  v.  Sperry  196,  236 

Congreve  v.  Smith  765 

v.  Morgan  765,  766 

Connelly  v.  Griswold  460,  468 

Connersville  v.  Bank  595 

Conrad  v.  Ithaca  112,  720,  736,  757,  775 

Conservators  v.  Ash  61,  62 

Conwell  v.  Emrie  214,  712 

Cook  v.  Boston  705,  706 

v.  Buffalo  ,  131 

v.  Burlington  507 

v.  Freeholders  707 

v.  Manufacturing  Company 

147,  148 

v.  Shipman  376 

Cook  County  v.  Railroad  Co.  688 

Cooley  v.  Board  of  Wardens  117 

v.  Freeholders  551,  747 

v.  Granville  41, 103 

Cooper  v.  Alderi  507,  508 

v.  Dismal   Swamp   Canal 

Company  620 

v.  Latapeter  250 

v.  Reansbey  249 

v.  Savannah  613 

v.  Smith  509 

Copes  v.  Charleston  145,  148,  412 

v.  Mathews  213 


Copeland  v.  Packard  446 

Cordiell  v.  Frizzell  196 

Corfield  v.  Coryell  562 

Cornell  v.  Barnes  192 

v.  Guilford 

60,  141,  210,  367,  375 

Cornell  College  v.  Iowa  County      685 

Corning  v.  Green  65,  67 

Cornish  v.  Pease  2S9 

Corporation  v.  Scott  122 

CoTwein  v.  Hamer  355 

Corwin  v.  Wallace  382 

Costar  v.  Brush  110, 124 

Cotes  v.  Davenport  743,  772 

Cotter  v.  Doty  290,  293r  294,  297 

Cotton  v.  Ellis  203 

v.  County  Commissioners   144 

Coulter  v.  Robertson  156,  158 

County  v.  Newport  499 

v.  Brinson  146,  150 

County  Court  v.  County  Court        168 

v.  Quarter  Session's  64 

v.  Simmons  211,  707 

v.  State  80 

County  Commissioners  V.  Chite- 

wood    264 
v.  Cox 

151,  156, 158 
v.  Holcolm 

552 

v.  Jones     249 

v.  Lathrop 

478,  498, 508 

Covington  v.  Casey  603,  604 

v.  Ludlow  257,  260,  261,  274 

Cowdin  v.  Huff  203 

Cowen  v.  West  Troy  279,  605 

Cowley  v.  Sunderland 

732,  737,  738,  775 

Cowles  v.  Brittian  562 

Cox  v.  Griffin  504 

v.St.  Louis  342 

Coy  v.  Lyons       639,  640,  641,  642,  644 

Craft  v.  Jackson  County  685 

Crsiig  v.  Burnett  214 

v.  Railroad  Co.  547 

v.  Vicksburg  393 

Crandell  v.  Amador  623' 

v.  Nevada  560 

Crane  v.  Fon  du  Lac  432,  639 

v.  Janesville  580 

Crawford  v.  Powell  265 

v  Delaware  744 

Crawford  County  v.  Wilson  395 

Crawshaw  v.  Roxbury  134,  381 

Creal  v.  Keokuk  525,  743 

Creighton  v.  Manson  286,  572 

v.  Piper  186 

v.  Scott  570,  601,  603 

v.  Toledo  •  391 


B 


XXVI 


TABLE   OF   CASES    CITED. 


Page. 
Crew  v.  Sheldon  165 

Crist  v.  Town  Trustees  250 

Crockett  v.  Boston  447 

Crommett  v.  Pearson  248,  261 

Cronan  v.  Municipality  390 

Crosby  v.  Warren  291,  297, 317 

Cross  v.  Morristown  383,  513,  580,  678 
Croydon  Hospital  v.  Farley  163 

Cruger  v.  Eailroad  Co.  467,  468 

Cruikshanks  v.  City  Council    570,  589 
Crups  v.  Darden  293 

Oulbertson  v.  Cincinnati  685 

Cumming  v.  (Policee  Jury  564 

v.  Mayor  204,  392,  596,  609 
Cunningham  v.  Squires  362,  691,  692 
Curran  v.  Arkansas  156, 158 

Currier  v.  Lowell  768 

Curry  v.  Bank  172 

v.  Mt.  Sterling  451 

Curtis  v.  Butler  County  148,  249 

v.  Keesler  477 

v.  Leavitt  128 

Cushman  v.  Smith  461 

Cuthbert  v.  Couley  306 

Cutting  v.  Stone  165 

Cuyler  v.  Rochester  375,  726 

Daily  v.  State  186 

D 


394,  395 
468 
746 
616 


119 
395 
213 
660,  665 


Dalrymple  v.  Whittington 
Dalton  v.  Northampton 
Dalzell  v.  Davenport 
Dallam  v.  Oliver 
Damon  v.  Granby 

65,  232,  244,  247,  248,  249 

254,  271,  372,  374 
Dana  v.  Jackson 

v.  San  Francisco 
Dameron  v.  Irwin 
Dane  v.  Derby 
Danforth  v.  Schoharie  Turnpike 

Company  378 

Daniel  v.  Memphis  94,  98,  389 

Dantignac  v.  Augusta  580 

Dargan  v.  Waddell  318 

v.  Mobile  732,  734 

Darlington  v.  New  York 

73,  84,  85,  86,  89,  90,  264, 

288,  638,  716,  738 
Dart  v.  Houston  79 

Dartmouth  College  v.  Woodward 

28,  72,  86 

Dashill  y.  Attorney  General  426 

Daublin  v.  Mayor  504 

Davenport  v.  Bird  310,  340,  353 

v.  Hallowell  367,  371 

v.  Insurance  Co. 

173,  377,  432,  433 
v.  Kelly  325,  326 


/      Page. 
Davenport  v.  Railroad  Co. 

565,  583,  595 
v.  Ruckman    757,  758,  860 
Davenport  Gas  Co.  v.  Davenport    132 
Davidson  College  v.  Chambers's 

Executors     '  430 

Davis  v.  Bangor  503,  505,  698 

v.  Bath  40 

v.  Dudley  752 

v.  Hill  753 

v.  Lowden  292 

v.  Mayor  534,  541,  542,  544,  685 
v.  New  York  110,  504,  506 

v.  Proprietor   of  Meeting- 
House  128 
v.  School  District           381,  382 
v.  Starr                              69,  310 
v.  Woolnough                   69,  350 
Day  v.  Green       109,  247,  302,  331,  729 
v.  Milford                                   755 
Dayton  v.  Pease                 710,  734,  735 
Dean  v.  Charlton                      384,  385 
v.  Gleason  565,  576,  585, 588, 689 
v.  Milford  Township              734 


v.  Todd 
DeArmas  v.  Mayor 
Deaton  v.  Polk  County 
DeBaum  v.  Mayor 
DeBen  v.  Gerard 
Debolt  v.  Cincinnati 
Decatur  v.  Paulding 
Decorah  v.  Bullis 
v.  Gillis 
DeCordova  v.  Galveston 
Deeds  v.  Sanborn 
Deford  v.  Mercer 
DeGrave  v.  Monmouth 
Deiman  v.  Fort  Madison 
Delabigarre  v.  Municipality 
Delacey  v.  Neuse 


107,  687 
498 
472 
685 
280 
207 
627 

243,1 244 
346 
394 
600 
445 
381 
600 
498 

227,  636 


243. 


Delafield  v.  Illinois     42,  368,  380^  383 

Delmonico  v  New  York  736 

Den  v.  Judges  636 

v.  Vreelandt  172,  173 

Denning  v.  Roome    255,  267,  268,  739 

Denniss  v.  Maynard  80 

Denton  v.  Jackson         60,  62,  418,  685 

DePauw  v.  New  Albany       .  558 

Dermont  v.  Detroit       "         '    773, 774 

DeRussey  v.  Davis  103 

Des  Moines  v.  Casady  617 

v.  Hall    476,  478,  510,  527 

v.  Layman  466 

Desmond  v.  McCarty  265 

Detroit  v.  Blakeby  723,  747,  757 

v.  Corey  83,  759,  774 

v.  Jackson  370,  381 

v.  Plank  Road  Co.  502 

DeVaraegne  v.  Fox  442 

DeVaux  v.  Detroit  5I2 


TABLE   OF   CASES    CITED. 


XXV11 


•  Page. 
Devor  v.  McClintock  170 

DeVoss  v.  Richmond 

83, 129,  394,  407,'  703 

Devoy  v.  New  York  203 

Dewey  v.  Detroit  710,  761 

DeWitt  v.  San  Francisco  135 

Dey  v.  Jersey  City     231,  247,  286,  368 

v.  Lee  213,  255 

DeZene  v.  Beekman  435,  436 

Diamond  v.  Cain  78 

Dibolt  v.  Insurance  Company         110 

Dickenson  v.  Fitchburg  471 

Dickey  v.  Hurlburt  177 

Diggle  v.  Railroad  Co.  368 

Dill  v.  Inhabitants  367 

v.  Wareham  40,  375,  704,  729 

Dillingham  v.  Snow  41,  97 

Dingley  v.  Boston      317,  441,  442,  448 

Dingman  v.  People  110 

Dively  v.  Cedar  Falls       132,  395,  552 

Divine  v.  Harris  628 

Dix  v.  Dummerston  389 

Dixon  v.  Cincinnati  458,  692 

Dodd  v.  Hartford  107,  688 

v.  Miller  42 

Dodge  v.  Gridley  299 

Doe  v.  Attica  477 

v.  Chunn  615 

v.  Jones  121,  479,  497 

Doe,  &c.  v.  Norton  161 

Dolan  v.  Baltimore  586 

v.  Mayor  384 

Donovan  v.  New  York  375 

v.  Vicksburg  296 

Donnaher  v.  State  533,  540 

Doolittle  v.  Supervisors  683,  685 

Dorchester  v.  Wentworth        458,  691 

Dorgan  v.  Boston  361 

Dorsey  v.  Smith  208,  209 

Doughty  v.  Hope  392 

Dougherty  v.  Hitchcock  580 

Douglas  v.  Branch  Bank  162 

v.  Commonwealth  336 

v.  Placerville  104,  684 

v.  State  209 

v.  Virginia  City  128,  366 

Dovaston  v.  Payne  476, 510 

Dover  v.  Fox  477 

v.  Twombly  193 

Dow  v.  Bullock         »  195 

Dows  v.  Chicago  677,  688 

Downer  v.  Boston  602,  608 

Downing  v.  Rugar  213,  249,  251 

Drake  v.  Lowell  755 

v.  Phillips  578,  684 

v.  Railroad  Co.  538,  540 

Duanesburg  v.  Jenkins  147,  411 

Dubois  v.  Augusta  276,  279,  614 

v.  Budlong  318 

v.  Canal  Company  372 


Page. 
Dubuque  College  v.  Township  381, 383 
Dubuque  County  v.  Railroad  Co. 

134,  135 

Dubuque  v.  Benson  478,  527 

v.  Insurance  Company    590 

v.  Maloney        479,  504,  527 

v.  Miller  322,  328 

v.  Rebman  362 

v.  Wooten  606 

Duckwall  v.  New  Albany  126 

Dudley  v.  Frankfort  679 

v.  Tilton  507 

v.  Weston  269 

Duffleld  v.  Detroit  458 

Dugan  v.  Baltimore  122,  613,  614 

v.  United  States  191,  210 

Duggen  v.  McCruder  694 

Duke  v.  Rome  711 

Dummer  v.  Jersey  City  504,  508 

Dunbar  v.  San  Francisco  713 

Duncan  v.  Niles  213 

Dunham  v.  Rochester 

279,  284, 293,  302,  304,  305,  326 

v.  Trustees  326 

Dunlap  v.  County  504,  508,  614 

Dunion  v.  People  i     477 

Dunn  v.  Charleston  443 

v.  Rector  377 

Dunning  v.  Aurora  506 

v.  Railroad  Co.  97 

Dinsmore's  Appeal  84,  91 

Durant  v.  Jersey  City  607 

v.  Kauffman  598 

v.  Palmer  765,  766 

v.  Supervisors  613 

Durfey  v.  Hoag  262 

Durnesnil  v.  Dupont  318,  321 

Durr  v.  Howard  358 

Dusseau  v.  Municipality  460,  695 

Dutton  v.  Strong  118,  119,  321 

Dwight  v.  Commissioners  471 

v.  Springfield  458, 691, 693,  694 

Dyckman  v.  Mayor  577 

Dygert  v.  Schenck  551 


E 


East  Anglian  Railway  Co.  v.  East- 
ern Counties  Railway  Co.        703 
East  Hartford  v.  Hartford  Bridge 

Company  75,  84,  124,  126 

East  Kingston  v.  Towle  143 

Eastman  v.  Meredith 

39,44,  124,  718,  719,  720, 735, 739,  749 
Easton  v.  Callender  213 

East  St.  Louis  v.  St.  John  452 

v.  Wehrung 

109,  302,  306 

v.  Wider  625 

Eaton  v.  State  •  676 


XXV111 


TABLE   OF   CASES   CITED. 


Page. 
690 
452 
75,  113 


167 
269 
266 
350 


360 

211 

449 

626 

744 

42 

768 

547 

215,  706,  547 

348 

154,  187 


Edgar  v.  Dodge 
Edgarton  v.  Huff 

v.  Municipality 
Edmunds  v.  Gookin 
Edwards  v.  Railroad  Co. 

v.  Vesey 
Egleston  v.  City  Council 
Egyptian  Levee  Co.  v.  Hardin  566,  586 
Egypt  St.  100, 101 

Ela  v.  Smith  177 

Elder  v.  Dwight  Manufacturing 

Company 
Eldred  v.  Seaton 
Eldridge  v.  Smith 
Elkins  v.  Athearn 
Ellis  v.  Iowa  City 

v.  State 
Elliott  v.  Concord 

v.  Railroad  Co, 
v.  Swartout 
Ellwood  v.  Bullock 
Elmendorf  v.  Ewen 
v.  Mayor 
154,  165,  1,70, 195, 255, 286,  695 
Elston  y.  Chicago  706 

v.  Crawfordsyille  167 

Elwell  v.  Greenwood  507 

Ely  v.  Rochester  135 

v.  Supervisors  320 

Embury  v.  Connor    441,  443,  444,  451 
Emerson  v.  Newberry  378 

Emery  v.  Gas  Co.       572,  577,  586,  609 
v.  Mariaville  394,  395 

Episcopal,  &c,  Society  v,  Episco- 
pal Church  162, 381 
Erie  v.  Canal  Co.  '73,  90 
v.  Knapp  114 
v.  Swingle                         734,  757 
Ernst  v.  Kunkle  746 
Eechback  v.  Pitts                     613,  616 
Estabrook  v.  State                          559 
Estep  v.  Keokuk  Co.  375 
Estes  v.  School  District  40 
Estey  v.  Westminster                      383 
Ethridge  v.  Hill                                676 
Evans  v.  Erie  County                       513 
v.  Philadelphia  Club 

216,  219,  223,  224 

v.Trenton  206,207,212 

Evansville  y.  Hall  593,  595 

v,  Pfisterer  689 

Ewbanks  v.  Ashlev    288,  339,  341,  353 

Ewing  v.  Filley  180,  183,  357,  362 

y.  Tompson  182 

v.  St.  Louis 

459j  460,  677,  689,  691,  692 
Exchange  Bank  v.  H,ines  591 

Exeter  v.  Glyde  227 

Exon  v.  Starre.  345 

Express  Company  v.  Ellyson  565 

"vman  et  al.  v.  People  700 


fage. 
241 
395 

577,  578 
580 

126,  369 


F. 

Facey  v.  Fuller 
Faijjchild  v.  Railroad  Co. 
Fairfield  v.  Ratcliff 
Falmouth  v.  Watson 
Fanning  v.  Gregoire 
Farmers'  Loan,  &c.  Co.  v.  Carroll  428 
Farnum  v.  Concord  749 

Farwell  v.  Cambridge  471 

Fash  v.  Avenue  Railroad  Co,         546 
Fauntleroy  v.  Hannibal  96 

Fauvia  v.  New  Orleans  715 

Fawcett  v.  Charles  219, 222 

Fay  v.  Noble  128 

Fayette  v.  Shafroth  361 

Fazakerly  v.  Wiltshire     290,  299,  348 
Fellows  v.  Gilman  192 

Feltmakers  v.  Davis  278,  344,  345 

Fennimore  v.  New  Orleans  737 

Ferguson  v.  Chittenden  205 

v.  Earl  of  Kinnoul  228 

Fernald  v.  Lewis  718 

Ferwald  v.  Boston  746 

Field  v.  Commonwealth    208, 222,  633 
v.  Girard  College  185,  222 

Findler  v.  San  Francisco  435 

Fink  v.  Milwaukee  342,.  343,  353 

Finley  v.  Dietrick  167 

v.  Philadelphia  592 

Finnell  v.  Kates  606 

Finney  v.  Oshkosb.  391 

Fire  Department  v.  Helfenstein     303 
v.  Kip  63,  97 

v.  Milwaukee      565 
v.  Wright  562 

First  Congregational  Society  v. 

Atwater  "  428 

First  Parish  v.  Stearnes 

179,  244,  250,  265 

Fisher  v.  Boston        713,  714,  731,  733 

v.  Harasburg         278,  284,  290 

v.  McGirr  347,  527,  607 

v.  Prowse  767 

v.  School  District  247,  381 

Fiske  v.  Hazzard  144 

Fitch  v.  Pinckard    97, 103, 345, 580, 590 

Fitzhugh  v.  Custer  652 

Flagg  v.  Palmyra  406, 407, 41Q,  638.,  643 

v.  Worcester 

740,  746,  769,  770,  771,  775 

Fleckner  v.  U.  S.  Bank  370 

Flemiagsburg  v.  Wilson  504 

Fletcher  v.  Auburn,,  &c.  R.  R.  Co.  510 

v.  Lowell  187 

v.  Oshkosh  391 

v.  Peck  274 

v.  Railroad  Co,  534,  540 

Flint  v.  Clinton  Co.  436 

Flint  River  Steamboat  v?.  Foster    341 

Flournoy  v.  Jefferson ville  391, 611, 613 

Floyd  v.  Comm'rs  341,350,351,356,360 


TABLE   OF  CASES    CITED. 


XXIX 


Floyd  v.  Mayor 

v.  Turner 

Fogg  v.  Nahant 

-ofie 


360 

461 

752 

Follett  v.  People  551 

Fonda  v.  Canal  Appraisers  692 

Foot  v.  Rowse  194, 196 

Foote  v.  Cincinnati  64 

v.  Milwaukee  391,  689 

v.  Salem  134 

Foreman  v.  Canterbury     735,  736,  757 

Ford  v.  Clough  •  40 

v.  Railroad  Co.  534,  540 

v.  Williamson  372 

Fort  Wayne  v.  Jackson  164,  165 

Fortune  v.  St.  Louis  114 

Fosdick  v.  Perrysburg      148,  149,  581 

Fossett  v.  Bearce  237 

Foster  v.  Eboads  300 

v.  Kenosha  68,  88 

v..  Lane  32 

v.  McKibben  214 

v.  Shaw  172 

Fowle  v.  Alexandria  99,  711,  719 

Fowler  v.  Pierce  628,  660 

Fox  v.  State  313 

v.  Northern  Liberties  728 

Frank  v.  San  Francisco  99,  641 

Frankfort  Bridge  Co.  v.  Frankfort 

378,  380 
Frankfort  Railway  Co.  v.  Philadelphia 
304,  545,  546 
Frany  v.  Miller  476 

Frazier  v.  Warfield  106,  330 

Frederick  v.  Augusta 

93, 149,  336,  591,  687 

v.  Goshen  683 

Freedom  v.  Ward  ,  552 

Freeholders  v.  Barber  302,  579 

v.  S  trader 

697,  716,  719,  747 

Freeland  v.  Hastings  144 

v.  Muscatine  746 

Freeman  v.  Cornwall  214 

Freeport  v.  Bristol  446 

v.  Marks  273 

French  v.  Commissioners  458 

v.  Quincy  135,431,499 

v.  Teschemaker  147 

Friend  v.  Dennett  315,  369 

Frewin  v.  Lewis  680 

Frolichstein  v.  Mobile  332 

Frost  v.  Belmont  685 

v.  Chester  632 

Fullam  v.  Brookfield        372,  373,  374 

Fuller  v.  Edings  117 

v.  Groton  140 

Fulton  v.  Mehrenfeld  476 

v.  Davenport  598,  6.00 

Furman  v.  Knapp  582 

v.  New  York  122 

v.  Nichol  87 


G 

Page. 
Gabriel  v.  Clark  200,  201 

Gaffney  v.  Gough  617 

Galbreath  v.  Armour  528,  534,  542 
Gahagan  v.  Railroad  Co  541 

Gale  v.  Mead  213 

v.  South  Berwick  134 

Galena  v.  Amy    403,;638,  641,  642,  644 
v.  Commonwealth  366 

v.  Corwith  129, 131 

Gall  v.  Cincinnati  322,  323,  524 

Gallia  Co.  v.  Holcolm  103 

Galloway  v.  Railroad  Co.  687 

Gallup  v.  Tracy  249 

Galveston  v.  Menard  119,  121, 122 
Gannon  v.  Hargadon  771 

Gardiner  v.  Boston  Railroad  Cor- 
poration 538 
Gardiner,  &c.  Co.  v.  Gardiner      592 
Gardner  v.  Newbury                447,  769 
v.  State                       583,  595 
Gamier  v.  St.  Louis  203 
Garrett  v.  St.  Louis           465,  573,  586 
Gartside  v.  East  St.  Louis        522,  678 
Garvin  v.  Wells  342 
Gas  Company  v.  County  594 
v.  San  Francisco 

83,  271,  286,  381 
v.  Thurber  594 

Gaskil  v.  Dudley  718 

Gassett  v.  Andover  378 

Gates  v.  Delaware  Co.  199,  201 

v.  Hancock  383 

Gay  v.  Bradstreet  458 

Gearhart  v.  Dixon  262,  267 

Gee  v.  Wilden  337 

Geiger  v.  Filor  117,  533,  535 

Gelpcke  v.  Dubuque 

129,  145, 148,  158,  393,  403,  406,  412 
Gentile  v.  State  6r 

Gerard  v.  Cook  555 

Germania  v,  State  301,  597 

Gerry  v.  Stoneman  141,  236 

Gibbon  v.  Railroad  Co.  134, 145 

Gibson  v.  Bailey  257,  258 

Gibson  v.  She^pard  692 

Geisy  v.  Railroad  Co.  450,  471,  473 
Gilchrist  v.  Little  Rock  414 

Giles  v.  School  District  32,  176,  236 
Gilkerson  v.  Justices  565,  569,,  597 
Gill  v.  Brown  212 

Gillette  v.  Hartford  600 

Gilman  v.  Sheboygan 

88,  559,  565,  579, 591 

Gilmer  v.  Lime  Point  447 

Gilmore  v.  Holt  142 

v.  Lewis  134,  206,  207 

v.  Pope  210 

Girard  v.  Philadelphia 

72,81,94,98,99,151,156,162, 
167,  418,  424,  42(1 


XXX 


TABLE  OP  CASES  CITED. 


Girard  Heirs  v.  New  Orleans 
Glasby  v.  Morris 
Glascock  v.  Lyons 
Gless  v.  White 
Gliddon  v.  Unity 
Goddard,  In  re 

v.  Jacksonville 
v.  Smithett 
Goddin  v.  Crump 
Godfrey  v.  Alton 
Gogshall  v.  Pelton 
Goldersleve  v  Alexander 
Goodale  v.  Tuttle 
Goodal  v.  Milwaukee 
Goodel  v.  Baker 
Goodenow  v.  Buttrick 
Goodloe  v.  Cincinnati 
Goodnow  v.  Commissioners 
Goodrell  v.  Jackson 
Goodrich  v.  Brown 

v.  Chicago    108,111, 
v.  Detroit    133, 366, 
v.  Milwaukee 
Goodtitle  v.  Alker 
Goodwin  v.  McGehee 
Gordon  v.  Appeal  Tax  Court 
v.  Baltimore  585, 595, 
v.  Farrer 
v.  Preston 
Gorham  v.  Springfield        63, 
Gorman  v.  Low 
Goshorn  v.  County 
Goss  v.  Corporation 
Gosselink  v.  Campbell      297, 
Goszler  v.  Georgetown 

110,  136,  523,  524, 

Gould  v.  Gapper  696 

v.  Sterling 

146,  147,  150,  394,  407,  411,  412 

Gourley  v.  Allen  626 

v.  Hawkins  436 

Governor  v.  Allen  42 

v.  Meredith        136, 712,  740 

v.  Justices  719 

Graffurs"v.  Commonwealth  212 

Graft  v.  Baltimore  .  457,  458 

Graham  v.  Carondelet       241,  260,  286 

v.  State  ,         350 

Granby  v.  Thurston  166,  168 

Grand  Rapids  v.  Hughes  291,  363 

Grant  v.  Courter  68 

v.  Davenport  119, 122,  437 

v.  Faneher  210 

Graves  v.  Colby  344,  345 

v.  Otis  743 

v.  Shattuck  554 

Gray  v.Iowa  Land  Co.      501,  511, 512 

v.  State  350,  360 

Grey  v.  Railroad|Co.  534 

Green  v.  Cheek  165 


Page. 
426 
528 
209 
582 

112,  211 
101 
307 
665 

144,  559 
477 
428 
175 
769 

524,  745 
239 
100 
744 
395 
418 

342,  361 

626,  710 

391,  392 
745 
510 
434 
595 

613,  706 

45 

434 

167,  170 
298 
148 
329 

299,  300 

743,  744 


Page. 

Green  v.  Durham  242 

v.  Indianapolis  268 

v.  Marks  433 

v.  Mayor  69,  392,  596 

v.  Miller  248 

v.  Mumford  688 

v.  Portland  539 

v.  Beading  525,533,743 

v.  State  264 

v.  Underwood  319 

Greene  v.  Savannah  137,  319 

Greensboro  v.  Mullens  302,  312 

Greensburg  v.  Young  568 

Greer  v.  Shackelford  181, 183 

Gregory  v.  Railroad  Co.  314,  318 

Greley  v.  Railroad  Co.  771 

Grier  v.  Shackleford  362 

,  v.  Taylor  666 

Griffin  v.  Martin 
v.  Mayor 
v.  Rising 

Griffing  v.  Pintard 

Griffith  v.  Follett 

Grigg  v.  Foote 

Grindley  v.  Barker 

Griswold  v.  Stonnington 

Groenvelt  v.  Burwell 

Grogan  v.  San  Francisco 

73,  86,  91,  383,  433, 

Groundie  v.  Water  Co. 

Guerrin  v.  Reese 

Guilford  v.  Supervisors  90,  91' 

Guillotte  v.  New  Orleans 


325, 


702, 


Gulic  v.  New 
Gunn  v.  County 
Gurner  v.  Chicago 
Guthrie  v.  Armstrong 
Gutzwell  v.  People 
Gwynne  v.  Cincinnati 

H. 

Hadley  v.  Chamberlain 
v.  Mayor  181, 183 
v.  Peabody 
Hafford  v.  New  Bedford 
713, 
Hagan  v.  Campbell 
Hagner  v.  Heyberger 
Hague  v.  Philadelphia 

368,  370, 375, 
Haight  v.  Keokuk 
Haines  v.  School  District 
Halbert  v.  State 
Hale  v.  Cushman 
v.  Houghton 
Haliburton  v;  Frankford 
Hall  v.  Cockrell 
v.  Mancester 
v.  McCaughey 


176, 


709,  710 
455 
616 
214 
731,  742 
248,  249 
389 
690 

498, 704 

430 

612,  617 

,557,568 

295,  330 

186,  351 

625,  639 

589,  612 

248 

72,80 

446 


259 

,208,219,226 
114 

714,  731,  733 
119, 120 


382,  383, 384 
527 

238,  706 
212 
685 

139,  366 
373 
213 
211 
506 


TABLE   OF   CASES    CITED. 


XXXI 


Page. 

Hall  v.  Selectmen  621 

V.  Smith  213 

v.  Supervisors  625 

Halstead  v.  Mayor 

140,  375,  376,  390,  395 

Ham  v.  Miller  614 

v.  Salem  447 

Hamden  v.  Railroad  Co.  538 

v.  Rice  428 

Hamerick  v.  Rouse  679 

Hamilton  Co.  v.  Michela  31 

Hamilton  v.  Carthage  346 

v.  McNeil  165,  166 

v.  Railroad  Co.  369,  436,  540 

v.  State  625,  649,  687 

Hammer  v.  Covington       212,  629,  698 

Hammerskold  v.  Bull  213 

Hammett  v.  Philadelphia 

565,  568,  569,  589 
Hammond  v.  Haines  64,  100,  306 

Hampshire  v.  Franklin      85,  169,  171 
Hancock  v.  Hazzard  209,  212 

Hannibal  v.  Draper  477,  508 

Hanover  v.  Eaton  373 

Hanson  v.  Vernon 

74,  145,  146,  148,  450,  557,  558,  559 

Harbeck  v.  Toledo  451 

Hardcastle  v.  State  237 

Hardy  v.  Waltham  41 

Harker  v.  Mayor  342,  343 

Harkins  v.  Sencerbox  661 

Harlem  Gas  Co.  v.  Mayor        384,  385 

Harman  v.  Tappenden  228 

Harmon  v.  Brotherson  214 

Harness  v.  Canal  Co.  460 

Harper  v.  Elberton  .  590 

Harrington  v.  School  District  211,  389 

Harris  v.  Elliott  499,  512 

v.  Intendant  103,  306 

y.  Nesbit  126,  671 

v.  School  District     32,  257,  381 

v.  "Wakeman  345 

v.  Watson  135 

v.  Whitcomb  262 

Harrison  v.  Baltimore  107, 138, 139, 734 

v.  Bridgetown  94,  170 

v.  State  125,  126 

v.  Vicksburg  559,  562 

v.Williams  29,266 

Hart  v.  Burnett  498 

v.  Gaven  572 

v.  Mayor 

120,  122, 290,  293,  297,  321,  739 
v.  Stone  436 

Hartford  Bridge  Co.  v.  East  Hart- 
ford 126, 169 
Hartford  Bridge  Co.  v.  Ferry  Co. 

124,168 

Harvy  v.  Dermody  320 

v.  Rochester  724 


Page. 
Harvy  v.  W.  P.  S.  Co.  395 

Harwood  v.  Marshall        634,  652,  660 
Hasbrouck  v.  Milwaukee 

91,  370,  383,  384,  638 

Hascard  v.  Somamy  436 

Hasdell  v.  Hancock  140,  239 

Haskel  v.  Burlington  615 

Hatch  v.Barr  371 

v.  Mann  207 

v.  Pendegast  325 

Havemeyer  v.  Iowa  Co.  158 

Haveyreyer  v.  Supervisors  659 

Hawkins  v.  Commissioners     621,  625 

v.  Governor  627 

v.  Rochester  456 

Hawley  v.  Harrall  445 

Hawthorn  v.  St.  Louis  114 

Hayden  v.  Madison  382 

v.  Noyes  166,  238,  283 

v.  Turnpike  Co.  211 

Haygood  v.  Justices  719 

Haynes  v.  Covington  210,  367 

v.  Municipality  75 

v.  Thomas     506,  507,  511,  540 

v.  Washington  177 

Hays  v.  Pacific  Steamship  Co.         593 

v.  State  476 

Hayward  v..  School  District  382 

Haywood  v.  Mayor  277,  279 

v.  Savannah  100 

v.  School  District  236 

Hazen  v.  Essex  Co.  450 

v.  Strong  315 

Heacock  v.  Sherman  551 

Head  v.  Insurance  Co.  103,  368 

Hebert  v.  LeValle  498 

Heckerman  v.  Hummel    503, 504,;  506 

Hedges  v.  Madison  Co.     716,  719,  747 

Heeney  v.  Heeney  118, 119 

Heffner  v.  Commonwealth  650 

Heirs  of  Reynolds  v.  Comm'rs        442 

Heisembrittle  v.  Charleston 

276,  279,  307 
Heise  v.  Town  Council  290,  293,  294 
Hsland  v.  Lowell  272,  273,  299 

Henchman  v.  Detroit  511 

Hendee  v.  Pinkerton  172 

Henderson  v.  Baltimore 

577,  589,  602,  603 

Henly  v.  Lyme  737 

Henry  v.  Bridge  Co.  533 

v.  Chester  577 

v.  Railroad  Co.'  460 

v.  Pittsburg  Co.  743 

Hentz  v.  Railroad  Co.  541 

Hepburn  v.  Griswold  129 

Herbert  v.  Benson  503,  504,  507 

Hersey  v.  Supervisors  585 

Herzo  v.  San  Francisco 

282,  377, 433,  704 


xxxu 


TABLE    OF    CASES   CITED. 


Page. 
Hesketh  v.  Braddock  339,  345,  349 
Heslep  v.  Sacramento  207 

Heyneman  v.  Blake  452,  468 

Heyward  v.  Mayo*  441,  442 

Hey  wood  v .  Buffalo  677,  688,  689 

Hickman  v.  O'Neal  351 

Hickok  v.  Plattsburg  -      112,  760 

Hickox  v.  Cleveland  744 

Hicks  v.  Dorn  740 

v.  Launcelot  197 

Hiestand  v.  New  Orleans  206 

Higlee  v.  Railroad  Co.  506 

Higgins  v.  Chicago  455,  456 

v.  Livingston  213 

Highland  Turnpike  v.  McKean        97 
Higley  v.  Bunce  286 

High  v.  Shoemaker  573 

Hildreth's    Heirs    v.    Mclntire's 

Devisees  244 

Hildreth  v.  Lowell     448,  606,  609,  727 

Hill  v.  Decatur  69,  272,  306 

v.  Higdon  67,  564,  587 

v.  State  697,  698 

v.  Supervisors  551 

Hilliard  v.  Eichardson  732,  763 

Hilsdolfv.  St.  Louds  731 

Himmelman  v.  Cofran     609,  612,  624 

v.  Danos  580 

v.  Oliver  580,  606 

v.  Spanagal  609 

Hinchman    v.   Patterson    Horse 

Bailroad  Company         507,  534,  537 

540,  542,  544,  547 

Hinde  v.  Navigation  731 

Hinds  v.  Hinds  176 

Hines  v.  Leavenworth  574,  012 

Hinson  v.  Lott  561 

Hinton  v.  Lindsay  197 

Hite  v.  Goodman  213 

Hixon  v.  Lowell  749,  751,  755 

Hoag  v.  Durfey  258 

Hoblyn  v.  Begem  242 

Hoboken  v.  Gear        205, 219, 222,  287 

v.  Harrison  185,  193 

Hodgden  v.  Dexter  212 

Hodges  v.  Buffalo      103,  135,  141,  367, 

368,  375,  377,  380,  383,  683 

Hodges  v.  Mayor  304 

Hoffman  v.  St.  Louis  524,  743 

v.  Van  Nostrand  159 

Hoke  v.  Henderson  203,  208 

Hollroke  v.  Dickenson  615 

Holladay  v.  March  300 

Holland  v.  Baltimore 

101, 107,  602,  603,  604,  689 

v.  San  Francisco  94 

Holliday  v.  Frisbie  431,  432 

v.  People  72,  76: 

Hollowell  Bank  v.  Hamlin  348; 

Holmes  v.  Jersey  City  569, 578, 691, 693 


Page. 
Holroyd  v.  Pumphrey  615 

Home  of,  &c.  v.  Rouse  110 

Home  v.  Earl  Camden  696 

Homersham  v.  Wol.  &c.  Co.  368 

Hood  v.  Lyme  106,  141 

Hooker  v.  New  Haven  Co,      525,  743 
Hooksett  v.  Amoskeag,  &c.  Co. 

522,  552 
Hoole  v.  Attorney  General  321 

Hooper  v.  Emery  40 

Hope  v.  Deaderick  559 

Hopkins  v.  Mayor  273 

v.  Mehaffy  371 

v.  Whitesides  159 

Hopkinsori  v.  Marquis  of  Exeter   216 
Horn  v.  Baltimore  367,  368,  727 

v.  Whittier  193 

Hornbeck  v.  Westbrook  417,  428 

Hornblower  v.  Dunden  389 

Horner  v.  Coffey  433,  641 

Horney  v.  Sloan  299 

Horton  v.  Ipswich  752,  754 

Hospital  v.  Stickney  301 

Hotchin  v.  Kent  382 

Houghton  v.  Davenport  237 

Houston  "v.  Clay  Co.  213 

Hovey  v.  Mayo    107,  525,  526,  743,  746 
Howard  v.  Bridgewater 

698,  753,  753,  754 

v.  Church  569 

v.  Drainage  Company  89,  563' 

v.  Gage  635,  674 

v.  Providence  471 

v.  Savannah  279 

Howe  v.  Boston  705 

v.  Crawford  Co.  628 

V.  Keeler  380 

v.  New  Orleans  83,  715,  760' 

v.  Norris  .         329 

Howell  v.  Buffalo 

568,  577,  705,724,  727,  728,  730 

v.  Philadelphia  616 

Howes  v.  Racine  683,  689 

Howland  v.  Luce  202 

Hoyt  v.  Commissioners  592,  593 

v.  East  Saginaw        569,  570,  571 

v.  Thomson  380 

Hoxie  v.  Commissioners  648 

Hubbard  v.  Concord  754 

v.  Winsor  239 

Hubbell>.  Waterloo  648 

Huber  v.  Gazly  507 

Huddteson  v.  Baffin  285,  298 

Hudson  v.  Geary  332,  334 

Hudson  Co.  v.  State     64,  251,  252,  253 

Huffv.  Knapp  644,645 

Huffman  v.  San  Joaquin  Co.  747' 

Hughes  v.  Parker  184,  241 

v.  Railroad  Co:  502;  538 

Hull  v.  Supervisors  626 


TABLE   OF   CASES  CITED. 


XXX111 


Page. 

Page 

Hulin  v.  Municipality 

456,457 

Isom  v.  Railroad  Co. 

473 

Hullman  v.  Honcomp 

241,  633 

Israel  v.  Jacksonville 

329 

Hulson  v.  Mayor 

756 

v.  Jewett 

473 

Humes  v.  Mayor 

525,  743 

lyes  v.  Hulet 

213 

Hummer  v.  Hummer 

181,  362 

Humphreys  v.  County 

551 

J 

v.  Mears 

214 

Huneman  v.  Fire  Districl 

137 

Jackson  v.  Bowman 

110,  367 

Hunt  v.  Ambruster 

143 

v.  Cory 

417,  429 

v.  Philadelphia 

305 

v.  Hartwell 

417,  429 

v.  Pownal 

752 

v.  Hathaway 
v..LeRoy 

525 

v.  School  District 

236,  237,  238 

418 

v.  Utica 

391 

v.  Morris 

142 

Hunter  v.  Chandler 

209,  674,  675 

v.  People  319,362,363,691,694 

v.  Field 

210 

v.  Pratt 

172 

v.  Middleton 

510 

v.  Railroad 

393 

v.  Newport 

451 

Jacob  v.  Louisville 

473 

v.  Sandy  Hill 

476,  510 

James  v.  Putney 

345 

v.  Trustees 

477 

v.  San  Francisco 

761 

v.  Winsor 

735 

James  River  Co.  v.  Anderson 

533 

Hurlburt  v.  Litchfield 

735 

Jameston  v.  People 

97,98 

Hutchins  v.  Scott 

351,  360 

Jamison  v.  Fopiana 

436 

Hutchinson  v.  Pratt 

257,  258,  263 

Janesville  v.  Markoe 

101 

Hyde  v.  Franklin 

395 

Janey's  Executors  v.  Latane 

428 

v.  Jamaica 

749 

Jansen  v.  Ostrander 

210 

Hydes  v.  Joyes 

109,  588 

Janvrin  v.  Exeter 

134 

Hymes  v.  Aydelott 

468 

Jarvis  v.'  Barnard 

735 

v.  Mayor 

208,  228 

I. 

Jefferson  v.  Courtmire 

310,  334 

' 

Jeffersonville  v.  Ferry  Co. 

120,  124 

Imby  v.  Railroad  Co. 

547 

v.  Patterson 

187.  613 

Independence  v.  Moore 

310,  335 

v.  Weems 

167 

Indiana  v.  Woram 

42 

Jeffries  v.  Ankeney 

215 

Indianapolis  v.  Blythe 

\       313 

Jeffreys  v.  Garr 

62 

v.  Croas 

507,  508,  511 

Jenkins  v.  Thomasville 

356 

v.  Imberry 

262,  580 

v.  Waldron 

215 

v.  McClure 

551 

Jenks  v.  Chicago 

606 

v.  Mansur 

570,  605 

v.  Lima  Township 

706 

v.  Skeen 

370 

Jenner  v.  Jolliffe 

215 

Indianola  v.  Jones 

255,  370 

Jersey  City  v.  Hudson 

321 

Inglis  v.  Railway  Co. 

257,  286 

v.  Railroad  Co. 

543 

Inhabitants  v.  Cole 

248 

v.  State          511 

513,  693 

v.  Eaton 

430 

v.  Quaife 

204 

v.  New  Orleans            1 08 

Johns  v.  Nicholls 

219 

v.  String 

162 

Johnson  v.  Barclay 

356 

v.  Weir 

375,  395 

v.  Common  Council 

391 

v.  Wood 

62 

v.  Indianapolis 

162 

Innes  v.  Wylie 

225,  227 

/  v.  Irwin 

512 

Insane  Asylum  v.  Higgins       164,  640 

v.  Lexington 

-596 

Insurance  Co.  v.  Justices 

595 

v.  Municipality 

729,  732 

v.  Sanders 

251 

v.  Norway 

157 

v.  Sortwell 

253,  255 

v.  Oregon  City 
v.  Philadelphia 

596 

v.  Wilson's 

Heirs     649 

Intendant  v.  Chandler 

110, 132 

302,  304 

103,  307,  458, 

559,  690,  691 

v.  Scott 

477 

v.  Peppin 

678 

v.  Stanley 

214 

Iowa  City  v.  Foster 

205 

v.  Stark  Co. 

394 

Irish  v.  Webster 

210 

v.  Steadman 

211 

Irwin  v.  Fowler 

765 

v.  Wilson 

211,  238 

Isley  v.  Stubbs 

142 

Johnson  Co.  v.  Hicks 

623 

XXXIV 


TABtB   OF   CASES  CITED. 


Page. 

Johnston  v.  Charleston 

179, 184 

Joliet  v.  Verley 

111,  551,  710 

Jonas  v.  Cincinnati 

132,  577,  578 

Jones  v.  Andover 

239,  248,  249 

v.  Lancaster 

378 

v.  Little  Rock 

395 

v.  Mayor 

147 

v.  New  Haven 

83,  760,  773 

v.  Richmond 

366 

v.  Robbins 

361 

v.  Soulard 

166 

v.  State  Auditor 

653 

Jordan  v.  School  District 

211,  236,  237, 

239,  264,  382 

Joseph  v.  Odonoghue 

566 

Judson  v.  Bridgeport 

455 

Junkins  v.  Union  School  District 

248,  371 

Justices  v.  Munday 

622,  623 

v.  Orr 

395 

v.  Plankroad  Co. 

678 

v.  Turnpike  Co. 

661 

K 


Kane  v.  Baltimore  442,  447,  452 

Kansas  P.  R.  R.  Co.  v.  Russell       689 

Kavanaugh  v.  Sanders  193 

Kayser  v.  Trustees  59 

Kearney  v.  Andrews  347 

v.  Covington  391 

Keasy  v.  Louisville  744 

Keating  v.  Sparrow  298 

Keckely  v.  Comm'rs  of  Roads        300 

Keeler  v.  Frost  249 

v.  Milledge  341,  343,  363 

Keith  v.  Easton  751,  755 

Keithsburg  v.  Frick  383, 412 

Kellar  v.  Savage  210,  258,  261 

Keller  v.  State  562,  597 

Kellogg  v.  Northampton  753 

Kelly  v.  Mayor  369,  395 

v.  Milwaukee  107. 108,  710 

Kelsey  v.  King  479,  526,  531 

v.  Wright  195,  196 

Kendall  v.  King  129 

v.  Stokes  209,  620,  650 

v.  United  States  620, 627, 645 

Kennedy  v.  Board  of  Health  '         319 

v.  Covington     121, 122,  431 

v.  Phelps  318;  319,  321 

v.  Sowden         291,  297,  299' 

v.  Washington  626 

Kentucky  v.  Dennison  42,  620 

Kentucky  Seminary  v.  Wallace 

162, 164; 
Kepner  v.  Commonwealth 

241,  272,  286 
Kerr  v.  Trego 

182,  184,  241  243,  631,  633 
Ketchum  v.  Buffalo 

128, 131,  322,  323,,  505,  685 


Kettering  v.  Jacksonville        346,  348 

Keyes  v.  Westford  103,  248,  371 

Keyser  v.  School  District         248,  381 

Kimball  v.  Boston  731,  732 

v.  Kenosha  442,  511 

v.  Lamprey  339,  265,  637 

v.  Marshall  239,  251 

v.  School  District    •  382 

King  v.  Beesten  249 

v.  Boston  248 

v.  Bristol  Dock  Co.  626 

v.  Butler  212,  250 

v.  Cross  321 

v.  Grant  100 

v.  Hardwick  269 

v.  Harris  252 

v.  Ingram  265 

v.  Jonea  321 

v.  Lisle  196 

v.  Madison  595 

v.  Mayor  196,  252 

v.  Merchant  Tailor's  Co.       298 

v.  Miller  250 

v.  Norris  250 

v.  Round  265 

v.  Russell  321 

v.  Williams  250,  674 

v.  Wilson  145, 646,  687 

Kingman  v.  County  Comm'rs         458 

v.  School  District  381 

Kingsbury  v.  School  District 

232,  238,  239,  248,  248,  371 
Kingston  (Mayor  of)  v.  Horner  97 
Kinzie  v.  Chicago  173 

Kip  v.  Patterson 

278,  302,  328,  341,  343,  353,  579 
Kirby  v.  Boylston  Market 

Association  331,  755,  766 

Kirby  v.  Shaw  565,  568 

Kirk  v.  King  428 

v.  Nowill  290,  293,  294,  299 

Kirkman  v.  Handy  318 

Klinkener  v.  School  District  508 

Kneeland  v.  Milwaukee  585,  597 

Knight  v.  Railroad  Co.  535 

v.  Wells  156,  160 

Knowlton  v.  Inhabitants  382 

v.  Supervisors  591 

Knox  Co.  v.  Aspinwall  145,  394 

403,  404,  405,  406,  407,  409, 

410,  411,  642,  643,  646,  661 

v.  Lee  129 

v.  McComb  431 

Knox  v.  Peterson  580,  616 

Kcehler  v.  Iron  Co.  172 

Koppikus  v.  Commissioners  468 

Korah  v.  Ottawa  522,  551,  552 

Krickle  v.  Commonwealth      344,  347 

Kunkle  v.  Franklin  144 

Kupper  v.  South  Parish  248 

Kyle  v.  Malin  104,  577,  603 

Kynaston  v.  Shrewsbury  235 


TABLE   OF  CASES    CITED. 


XXXV 


Page. 
Labourdette  v.  Municipality  232,  246 
Lackland  v.  Railroad  Co.  533, 539, 540 
Lacour  v.  New  York  709,  736,  739 
Lade  v.  Shepherd  479 

Lafavette  v.  Bush  460, 525,  743 

v.  Cox         103, 104,  130, 148 
v.  Fowler 

569,  570, 589,  605,  689 

v.  Jenners  59,  66 

v.  Male  Orphan  Asylum  586 

v.  Spencer  743 

Lafou  v.  Dufrocq  69,  351 

Lake  v.  Williamsburg  610 

Lake  View  v.  Letz  317 

Lakin  v.  Ames  170 

Lamb  v.  Lane  466 

v.  Lynd  183,  629,  631 

v.  Shays  433 

Lancey  v.  Bryant  269 

Lander  v.  McMillan  659 

v.  School  District  236 

Landolt  v.  Norwich  754 

Lane  v.  Cotton  214 

v.  Kennedy  512,  513 

v.  School  District  381 

v.  Sewell  207 

Lane  Co.  v.  Oregon  612 

Lanfear  v.  Mayor  295 

Langdon  v.  Castleton  204,  389 

v.  Fire  Department  582 

Langhorn  v.  Robinson  558 

Langsdale  v.  Bouton         262,  263,  264 

Langworthy  v.  Dubuque  598,  600 

Lansing  v.  County  Treasurer  87 

v.  Smith  118,  H9, 122 

v.  Treasurer  158, 579, 647, 662 

Larkin  v.  Saginaw  Co.      716,  719,  747 

Lamed  v.  Burlington  149,581 

LaRosa  v.  Mayor  325 

Lathrop  v.  Bank  172 

v.  State  212 

Lawrehceburg  v.  West  302,  313 

Lawson  v.  Scott  690 

Lawton  v.  Commissioners       361,  690 

v.  Erwin  192 

Layton  v.  New  Orleans      81, 167, 172 

Lea  v.  Hernandez  154 

Leavenworth  Co.  v.  Miller  145 

Leavenworth  v.  Norton 

149,577,578,581,685 

v.  Rankin  367,  375,  391 

Leazure  v.  Hillegas  430 

Lebanon  v.  Heath  378 

LeClaire  v.  Davenport  325, 322, 326, 711 

LeClercq  v.  Gallipolis  442,499,506,507 

LeCoulteleux  v.  Buffalo  193 

Lee  v.  Flemingburg  134 

v.  Sandy  Hill  727,  728 

v.  Walis  298,  348 


Lee  Co.  v.  Rogers 
Legrand  v.  The  College 
Lehigh  Co.  v.  Kleckner 
Leman  v.  New  York 
Lemington  v.  Blodgett 
Leonard  v.  Canton 
LeRoy  v.  Mayor 
LesBois  v.  Bramell 
Lesley  v.  White 


87,646 
173 
704 
724 
703 
104,  308 
692 
499 
213,  378,  716 


Lessee  of  Cincinnati  v.  Church 

(First  Presbyterian)  513 

Lessee  v.  Saunders  512 

Levering  v.  Mayor  173 

Levy  v.  New  York  710 

Lewis  v.  Henley  687 

v.  Oliver  201,  633 

v.  State  358 

v.  United  States  305 

Lewiston  v.  Proctor  340,  341,  353 

Lexington  v.  Headley 

260,  261,  274,  580, 603 
v.  McQuillan's  Heirs 

567,  569,  573 

v.  Mulliken  638,  640 

Libby  v.  Downey  329 

Liddy  v.  St.  Louis  Railroad  Co.      546 

Lincoln  v.  Hapgood  215 

v.  Worcester  •    705 

Lindsey  v.  Luckett  197,  634,  636 

Linning  v.  Charleston  592 

Liquidators  v.  Municipality  87 

Litchfield  v.  Polk  Co.  689 

v.  Vernon 

502,  557,  559,  568,  603,  612 

Little  v.  Merritt  213, 236,  239 

Littleton  v.  Richardson  767 

Livingston  v.  Mayor  468 

v.  McDonald  771 

v.  Pippin  139,  375 

v.  Wider  563,  688 

Lloyd  v.  New  York     72,  709,  736,  737 

Lockwood  v.  St.  Louis  107, 566, 586, 688 

Logansport  v.  Blackemore  370 

v.  Legg  246, 255 

v.  Wright  773 

Loker  v.  Brookline     375,  378,  382,  754 

Lombard  v.  Cheaver  305 

London  v.  Barnardston  345 

v.  Wood  298,  349 

,  v.  Vanaker   198,  278,  299,  300 

Londenderry  v.  Andover  97, 98 

v.  Derry  168 

Longworth  v.  Evansville  67 

Loomis  v.  Moffitt  627 

v.  Spencer  213,  215 

Lord  v.  Bigelow  62 

v.  Governor  241 

v.  Mayor  714 

Lorillard  v.  Monroe  (The  Town  of) 

60,  679,  711,  729,  735 


XXXVI 


TABLE  OF  CASES  CITED. 


Page. 
Lot  v.  Robs  577,  580 

Louisiana  State  Bank  v.  Orleans 

Nav.  Co.  103,  386 

Louisville  v.  Bank  121, 526,  614 

v.  Comm.       72, 83,  432,  584 
v.  Henderson  391 

v.  Henning  596,  707 

v.  Higdon  196 

v.  Hyatt  569,  603 

v.  McKean  100,655,657,663 
v.  Boiling  Mill  Co  744 

v.  University  of  Louis- 
ville 79,  83,  89,  94 
Loute  v.  Alleghany  Co.     642,  659,  661 
Love  v.  Hinkley  .-  106 
v.  Ramsour                        80,  168 
v.  Schenck                         80,  168 
Lovell  v.  St.  Paul  390 
Lovett  v.  Steam,  &c.  Association    436 
v.  Railroad  Co.                     546 
Low  v.  Commissioners  of  Pilot- 
age                      190,  341,  360 
v.  Evans  189 
v.  Pettingill  257 
v.  Towns                           628,  668 
Lowell  v.  French  610 
v.  Oliver  144 
v.  Railroad  Co.             538,  768 
v.  Simpson                            555 
v.  Spaulding                  555,  766 
v.  Wheelock                262,  610 
v.  Wentworth               601,  610 
v.  Wyman             610,  715,  716 
Lowler  v.  Mayor                   56,  72.  154 
Loze  v.  Mayor                                   347 
Lucas  v.  Pitney                               128 
v.  San  Francisco                     390 
Ludlow  Corporation  v.  Tyler          161 
Lumbard  v.  Aldrich                  268,  348 
Lumsden  v.  Milwaukee    467,  468,  587 
Lund  v.  Tynesboro  752 
Lycoming  v.  Union  91 
Lyman  v.  Bridge  Co.                        731 
v.  Burhngtou                       458 
v.  Edgarton                          735 
Lyme  v.  Henley                        153,  696 
Lynch  v.  Alexandria                       564 
•              v.  Laffland                     195, 197 
v.  People                             344 
Lyon  v.  Adams                               639 
v.  Adamson                             371 
v.  Commonweulth                 176 

M 

Macbeth  v.  Haldeman  212 

Macey  v.  Titcombe  384 

Machell  v.  Nevinson  252 

Macklot  v.  Davenport  181 

Macy  v.  Indianapolis  524,  525,  743 


Maddox  v.  Graham  144,  367,  369, 394, 

414, 638, 643, 650, 651, 655, 660, 663 

Madison  Co.  Court  v.  Alexander    639 

Madison  v.  Hatcher  313 

v.  Kelso  205 

v.  Korbly     220,  222,  226,  228 

v.  "Whitney  593,  595 

Magee  v.  Commonwealth  568 

v.  Supervisors  626,  631 

Magill  v.  Kauffman  377 

Magruder  v.  Swann  628 

Maher  v.  Chicago  378,  390 

Mayhew  v  Gayhead  262 

Mahon  v.  Railroad  Co. 

473,  510,  534,  540 
Mahoney  v.  Bank  62 

Main  v.  McCarty  189,  344 

Malchus  v.  Highlands  574 

Maleverer  v.  Spink  -  712 

Mallory  v.  Mallett  159 

v.  Supervisors  206 

Malone  v.  Murphy  360 

Maloy  v.  Marietta  68 

Maltus  v.  Shields  598 

Manchester  v.  Herrington  210 

Mandershid  v.  Dubuque    550,  758,  766 
Manice  v.  Mayor  392 

Mankato  v.  Willard  504 

Manley  v.  Gibson  478 

Mann  v.  Pentz  172 

Manning  v.  Fifth  Parish  261, 268 

Manufacturing  Co.  v.  Dayis  160 

Marble  v.  Worcester  752 

Marbury  v.  Madison  191,  650 

March  v.  Commonwealth  277,310,311 
Marchant  v.  Langworthy  237 

Marietta  v.  Fearing      73,  279,  284, 299 
Markham  v.  Mayor  524,  743 

Markle  v.  Akron        107,  272,  285,  360 
v.  Wright  241,  666 

Marriage  v.  Lawrence  267 

Marriott  v.  Baltimore  732 

v.  Hampton  705,  708 

Marsh  v.  Fulton  Co. 

147, 149, 367, 368, 383, 403, 407, 412, 414 

Marshall  Co.  v.  Cook  412 

Marshall  v.  Guion  -  122 

Martin  v.  Bank  430 

v.  Lemon  248,  249 

v.  Mayor 

214,  375,  376,  456,  715,  737 

v.  O'Brien  117 

Mason  v.  Bristol  373 

v.  Fearson  111 

v.  Lancaster  597 

v.  Muncaster  418 

v.  Pitt  168 

Maurice  v.  New  York  577 

Matheney  v.  Golden  110 

Maurin  v.  Smith  628 


TABLE   OP   CASES    CITED. 


XXXV11 


May  v.  Railroad  Co.  467 

Mayberry  v.  Franklin  570 

Mayo  v.  James  460,  695,  696 

Mayor  v.  Allaire  312 
v.  Avenue  Railroad  Co.  289,304 
v.  Bailey  447, 582, 731 ,  737, 769 
v.  Bank  of  Tennessee  560,  585 
v.  Beasley        279,  280,  302,  578 

v.  Cashman  586 

v.  Colchester  164 

v.  Colgate  616,  617 

v.  Conner  241 

v.  Cunliff  725 

v.  Elliott  427 

v.  Franklin  507 
v.  Furze           111,  629,  710,  756 

v.  Geisel  224 

v.  Graves  266 

v.  Gravier  503,  508 

v.  Hartridge  301,  595 

v.  Hopkins  89,  498 

v.  Horn  193 

v.  Howard  613,  614 

v.  Hyatt  286, 310,  329 

v.  Leverich  498 

v.  Lockett  679 

v.  Long  269,  355 

v.  Lord           638,  643,  646,  653, 
655,  657,  662,  712,  713,  715 

v.  Lyme  Regis  266 

v.  McKee  614 

v.  Meserole  107,  677 

v.  Morgan  179,  272,  362 

v.  Mutual  Bank  583 

v.  Ordrenan  290,  292,  293 

v.  Nickols  279,  286,  329 

v.  Omburg  142 

v.  Pedley  322 

v.  Pentz  714,  715 

v.  Peyroux  325 

v.  Phelps  292 

v.  Pilkinton  216 

v.  Randolph  525,  636 

v.  Regina  655,  740,  769 

v.  Richardson  469 

v.  Rood  327 

v.  Rouse  312 

v.  Rowland  114 

v.  Savannah  310 
v.  Shaw    220, 221,  691,  693,  695 

v.  Sheffield  756,  761 

v.  Simpson  231 

v.  Slack  316 

v.  State  69,  168,  625 

v.  Steamboat  Co.  479 

v.  Thorne  280,  283,  336 

v.  Tows  79 

v.  Williams  336 

v.  Winfield  279,  280 

v.  Winter  376 


Page. 

Mayor  v.  Wright  224,  269 

v.  Yuille        •  103,  290,  292,  294 

295,  297, 300,  305,  330,  578 

Mays  v.  Cincinnati 

103, 277, 302, 305, 564, 576, 577, 707 

Maysville  v.  Shultz  99 

McAllister  v.  Clark  320 

McCall  v.  Byram  Man'fg  Co.   195, 196 

McCarty  v.  Bauer  734,  735 

v.  Chicago  191,  554 

McClung  v.  Silliman  627,  645 

v.  St.  Paul  204 

McCollough  v.  Mayor       623, 736, 737 

McCoombs  v.  Akron  744 

McConnel  v.  Lexington  479 

McCoy  v.  Chillicothe  213,  215 

v.  Harnett  659 

McCracken  v.  San  Francisco 

133, 246, 255, 369, 377,378, 383, 433, 704 
McCready  v.  Guardians  250 

McCrory  v.  Griswold  458 

McCullough  v.  Maryland    55, 558, 561 
v.  Moss  395 

McCulloch  v.  State  274 

McDermond  v.  Kennedy  578 

McDermott  v.  Met.  Police  Board 

188,  273 

McDonald  v.  Elfe  695 

v.  Red  Wing  713 

v.  Schell  361,467 

v.  Schneider  435 

McDougal  v.  Supervisors  114 

McFarlane  v.  Insurance  Co.  267 

McFarland  v.  Railroad  Co.   '  545 

McGary  v.  Lafayette  728,  729 

McGehee  v.  Mathis  570 

McGear  v.  Woodruff  356 

McGinnity  v.  New  York  761 

McGonigle  v.  Allegheny  568, 103 

McGuinn  v.  Peri  603 

Mclnnery  v.  Reed      588,  614,  615,  616 

Mclntire  v.  State  473 

Mclntyre  v.  Wood  645 

McKee  v.  McKee  297,  335 

v.  Town  Council 

305,  695,  705,  706 
McKean  v.  Louisville  626 

McLaughlin  v.  Cluley  176 

v.  Municipality 

456,457,736 

v.  Railroad  Co.    506,  540 

v.  Stevens  122,  310 

McLean  v.  Flagg  568,  624 

McLot  v.  Davenport  688 

McMasters  v.  Commonwealth        568 

McMullen  v.  Boyles  93,  412 

v.  City  Council       291,  360 

McNamara  v.  Estes  601,  602 

McRae  v.  O'Lain  297 

McSpedon  v.  Mayor  378, 391 


xxxvm 


TABLE   OF   CASES   CITED.. 


Page. 
Meagher  v.  County  203,  208,  352 

Meacham  v.  Railroad  Co.  471 

Mealing  V;  Augusta  696 

Means  v.  Hendershott  135 

Mears  v.  Wilmington  745,  772 

M.  E.  Corporation  v.  Herricks  261 
Meen  v.  Gas  Co.  528 

Mechanics  Bank   v.  Bank  of 

Columbia  371 

Medical  Institute  v.  Patterson  63 

Medway  Cotton  Manuf.  Co.  v. 

Adams  162 

Meech  v.  Buffalo  388 

Meeker  v.  Van  Bensselaer  264,  315 
Megowan  v.  Commonwealth  307,  333 
Memphis  Freight  Co.  v.  Memphis 

449,  450 
Mendota  v.  Thomson  346 

Mercer  County  v.  Hackett 

145,  393,  406,  407,  408,  410,  411,  412 
'Mercer  v.  Railroad  Company 

89,  410,  451,  501,  533,  535  545 

Merchants  Bank  v.  Cook  715 

Merriam  v.  Moody      103, 104, 614, 615 

v.  New  Orleans  301, 347, 564 

Merrick  v.  Amherst  565 

v.  Plank  Road  Co.  381 

Merrill  v.  Burbank  436 

v.  Dixfield  388 

v.  Plainfield  140,683,684 

Merwin  v.  Chicago  115 

Messenger  v.  Buffalo  370,  392 

Mersey  Docks  Cases  124,  757,  761,  778 

Mersey  Docks  v.  Gibbs     124,  709,  775 

v.  Penhallow  709 

Metropolitan  Board  of  Health 

v.  Heister  20, 188,  502 

Metcalf  v.  St.  Louis  272,  315 

Methodist  Church  v.  Baltimore 

108,  278 
Metropolitan  Railroad  Company 

v.  Quincy  Railroad  Co.  548 

Meuser  v.  Risdon   109. 588, 609, 611, 612 

Meyer  v.  Carolan  626 

v.  Muscatine  106, 129, 130 

145,  148, 387, 393,  403,  406,  408 

v.  Neward  474 

Michel  v.  Police  Jury  390 

Middlesex,  &c.  v.  Davis  160 

Middletown  v.  Allegheny  Co.         129 

v.  Lowe  628 

Milburn  v.  Cedar  Rapids  '  527 

v.  Railroad  Co.    537, 538,  548 

Miles  v.  Bough  257,  286 

v.  Chamberlain  290,  296 

Milford  Co.  v.  Brush  163 

Milford  v.  Holbrook  755,  766 

Milhau  v.  Sharp        110,  503,  506,  507, 

508,  528,  531,  538,  542,  685 

Mill  Dam  Foundry  v.  Hovey  172 


Page. 

Miller  v.  Ford 

213 

v.  Iron  Co. 

719 

v.  Milwaukee 

366 

v.  Savannah  Fire  Co. 

137 

v.  Supervisors 

200 

v.  Thomson 

395 

Milliard  v.  Lafayette  456,  457 

Mills  v.  Gleason         127,  244,  380,  383 
v.  Brooklyn 

710,  743,  769,  770,  772,  773,  774 

v.  Thornton  592 

v.  Williams  63,  70 

Milne  v.  Davidson     272,  273,  315,  319 

v.  Mayor  166 

Milwaukee  v.  Milwaukee  169 

v.  Railroad  Co.  537 

Milward  v.  Thatcher        200,  201,  202 

Miners  Bank  v.  United  States         676 

Miners  Ditch  Co.  v.  Zellerbach 

70,  368,  435,  702 

Minor  v.  Bank  209 

Minot  v.  Boston  Asylum  164 

v.  Curtis       "  170 

Minturn  v.  Larue  103, 104, 125 

Mitchell  v.  Burlington  130 

v.  Davenport  598 

v.  Hay  625 

v.  Milwaukee  284,  689 

v.  Rockland  40,  137,  211, 315, 

375,  727,  731,  734 

Moale  v.  Baltimore  441,  559,  569 

Mobile  v.  Eslava  120 

Moir  v.  Monday  346,  347 

Moiser  v.  Tompson  170 

Monaghan  v.  Philadelphia 

639,  642,  695 
Monmouth  v.  Gardiner  551,  552 

Monterey  v.  Commissioners    458,  693 
Montpelier  v.  East  Montpelier 

81,  86,  90,  93, 168 

Montville  v.  Haughton  193 

Mooney  v.  Kennett  342,  343 

Moor  v.  Cornville  382 

Mooers  v.  Smedley  677 

Moore  v.  Abbott  752 

v.  Baltimore  442 

v.  Mayor  445 

v.  Newfield     236,  262,  268,  348 

v.  People  313 

v.  Railroad  Co.  728 

Moran  v.  Commissioners  403 

v.  Miami  Co. 

150,  393,  406,  407,  412 

Morano  v.  Mayor  322,  328 

Morey  v.  Newfane  72,  718,  719 

Morford  v.  Barnes  '   361,  467 

v.  Unger  69, 167,  600 

Morgan  v.  Beloit  647 

v.  Dubuque  390 

v.  Quackenbush  178, 183 


TABLE    OF   CASES    CITED. 


XXXIX 


Morrell  v.  Dixfleld 

211 

382 

v.  Sylvester 

191 

Morris  v.  Baltimore 

706 

v.  Bowers 

476 

v.  Burdett 

207 

v.  Chicago 

452 

v.  People 

67 

140 

v.  Rome 

334 

Morris  Canal  Co.  v.  Fisher 

393 

v.  Jersey  City 

678 

691 

693 

Morrison  v.  Lawrence 

262 

726 

731 

v.  McDonald 

186 

352 

Morse  v.  Richmond 

752 

Moses  v.  Railroad  Co. 

510,  533,- 534,  535,  537,  544,  548 

Mosley  v.  Alston  241 

v.  Walker  '322 

Moss  v.  Oakley  395 

Mott  v.  Hicks  212,  371,  377,  395 

v.  Pa.  Railroad  Co.  110 

v.Reynolds  257,259 

Mount  Carmel  v.  Wabash      '  302,  308 

Mount  Pleasant  v.  Breeze  276,313,332 

Mowatt  v.  Wright  708 

Mower  v.  Leicester 

40,  717,  719,  720,  721,  749 
Moyamensing  Com.  v.  Long    504,  505 


552 
156, 158 
582,  585 

335 
280,  321 

612 

213 


581 
,324, 
,347 

564 


Mullarky  v.  Cedar  Falls 

Mumma  v.  Potomac  Co. 

Municipality  v.  Bank 

v.  Blane 

v.  Blineau 

v.  Botts 

v.  Caldwin 

v.  Commissioners 

v.  Cotton  Press  Co. 

v.  Cutting   272,  322, 

328,  340,  341 

v.  Dubois  301 

v.  Duncan  565,  591 

v.  Dunn       565,  567,  569, 

573,  589 

v.  Gas  Light  Co.        522 

v.  Quillotte  565,  573 

v.  Hart  113 

v.  Johnson  590,  591 

v.  Levee  Co.  456 

,  Michoud  600 

Morgan  348 

,  Pease  117, 123 

Railroad  Co.  582,  585 

v.  Theatre  Co.  93 

v.  Ursuline  Nuns       600 

v.  Wheeler  565 

v.  White      564,  567,  573 

v.  Wilson  310,  313 

Munn  v.  Pittsburg  774 

Munsell  v.  Temple  305 

Murdock  v.  Academy  226,  228 


v. 
v. 
v. 

V. 


Murdock  v.  Aiken  411 

Murphy  v.  Chicago  533,  539,  743 

v.  City  Council   119, 121, 123 

v.  People  360 

Murtaugh  v.  St.  Louis  734 

Muscatine  v.  Hershey  122, 123 

v.  Railroad  Co. 

87,  88,  565,  579,  591 
v.  Steck  187,  362,  363 

Muscatine  Turnverein  v.  Funck 

154,  159 
Musgrove  v.  Catholic  Church 

275,  316,  317 

v.  Nevison  232 

Musser  v.  Johnson  174 

Muzzer  v.  Shattuck  212 

Myers  v.  Bank  55 

v.  Irwin  63 

v.  People  350,  360 

v.  Simms  458 

Myrick  v.  LaCrosse  605,  689 


N 


Nagle  v.  Augusta  522 

Nash  v.  St.  Paul  384 

Nashville  v.  Althrop  596,  597 

v.  Thomas  595 

National  Bank  v.  Commonwealth  561 
Navigation  Co.  v.  Portland  577 

Neale  v.  Overseers  192 

Neall  v.  Hill  219 

Nebraska  City  v.  Campbell     753,  756 
Neifler  v.  Bank  369 

Nelson  v.  Godfrey  508,  533 

v.  LaPorte  578 

v.  Milford  140,  141,  388 

Neuer  v.  Fallon  •  114 

Neuse  River  Co.  v.  Commissioners    ' 

621, 659» 
Nevins  v.  Peoria  771, 7/72 

New  Albany  v.  Meekin  592,  593 

v.  Sweeney  390, 301 

Newark  v.  Elliott  431 

v.  Funk  115> 

New  Boston  v.  Dumbarton  97 

Newby  v.  Piatt  County  473 

Newell  v.  People  131 

Newland  v.  Francis  175 

New  London  v.  Brainarct        10%  682, 
683,  685^  708 

v.  MontviHle  170 

Newman  v.  Justices  638 

New  Orleans  v.  Anderson  299 

v.  Bank  564 

v.  Bondo.  342 

v.  Bondu  300 

v.  CosteMto- 

2911, 298,,  337,  350 

v.Eliott  564r 


lx 


TABLE   OF   CASES    CITED. 


Page. 
New  Orleans  v.  Graihle  177,  387 

v.  Guillom  322,  614 

v.  Lambert  319 

v.  Michoud  600 

v.  Miller  310,  313 

v.  Philipi  276,  279 

v.  Poutz  93,  565 

v.  Staiger  564 

v.  St.  Louis  Church 

254,  275,  316,  317,  381 
v.  South  Bank  595 

v.  Turpin  301, 564 

v.  United  States 

117, 123,  476,  479,  498 

Newport  v.  Taylor  121,  122 

New  York  v.  Ave.  R.  R.  Co.  110, 545, 579 

v.  Furze  111 

New  York  Conference  v.  Clarkson  162 

New  York  Institute  v.  How  164 

Nichol  v.  Boston  187,211 

v.  Gardner  118,  119 

v.  Mayor  104 

v.  Nashville  144,  145,  147 

Nichols  v.  Bridgeport  455,  570 

v.  Comptroller  628 

Nicholson  Pavement  Co.  v.  Painter 

385,  580 

Nicholson  v.  Railroad  Co.  538 

Niles  Township  v.  Martin  716 

Nill  v.  Jenkinson  687 

Noble  v.  Bullis  707 

Nolan  v.  New  Orleans  210 

Nolin  v.  Mayor  320 

Norris  v.  Boston  560 

v.  Mayor  167 

v.  Staps    276,  278,  342,  344;  246 

v.  Trustees  75,  90,  94 

Northern  Liberties  v.  St.  John's 

Church    '  586,  617 

North  Hempstead  v.  Hempstead 

60,  62, 169,  417,  418,  428 
North  Lebanon  v.  Arnold  718 

North  Missouri  Railroad  Co.  v.  Ma- 

guire  558, 595 

North  Yarmouth  v.Skillings  72,94,170 
North  "Whitehall  v.  South  White- 
hall 170 
Northwood  v.  Barrington  236 
Norton  v.  Mansfield  40 
Norwich  v.  Hubbard  607,  616 
Norwich  Gas  Light  Co.  v.  Norwich 

City  Gas  Co.  73,  528,  529 

Nowell  v.  Mayor  129 

v.  Wright  214,  731 

Noyes  v.  Ward  476,  478 

Nugent  v.  State  350 


O 


17,56 


Oakes  v.  Hill 
Oakland  v.  Carpenter 

109, 110,  214,  246,  678 
v.  Whipple  593,  612 


Page. 
Oakley  v.  Mayor  591 

v.  Williamsburg  524 

Oates  v.  Hudson  706 

O'Brien  Co.  v.  Brown  678 

O'Conner  v.  Pittsburg 

501,  524,  533,  535,  568,  743 

O'Docherty  v.  Archer  183 

O'Donnel  v.  Bailey  360,  595 

Oeveriche  v.  Pittsburg  147 

O'Ferrall  v.  Colby  631 

Ogden  v.  Raymond  213 

Ohio  v  Commissioners  145 

v.  Gazley  612 

v.  Hibbard  612 

v.  Moffltt  667 

Ohio,  &c.  Company  v.  Merchants 

Co.  376 

O'Leary  v.  Sloo  573,  601 

O'Linda  v.  Lothrop  533,  553,  555 

Oliver  v.  Washington  Mills  562 

v.  Worcester 

82,  83,  720,  722,  733,  739,  749 

Olney  v.  Harvey  99, 159, 168,  641 

v.  Pearce  192 

v.  Wickes  212 

O'Neill  v.  Police  Jury  126 

Ontario  Bank  v.  Bunnell         583,  595 

Oregon  v.  Pyle  203 

Orr  v.  Baker     .  585 

Osborn  v.  Bank  of  U.  S.  55,  561 

v.  Danvers  705 

v.  Tunis  436 

Osgood  v.  Green  143 

v.  Manhattan  Co.  269 

Ottawa  v.  County  101 

v.  Macy  606 

v.  People 

69,  621,  626,  629,  649,  650 

v.  Railroad  Co.      606,  607,  692 

v.  Spencer  574,  575,  587 

v.  Trustees  587 

Overseers  v.  Kelly  170 

v.  Mayor  375 

v.  Overseers  170 

v.  Sears    17,  56,  61,  195,  417 

v.  Supervisors  368 

Owen  v.  Smith  156, 159 

Owings  v.  Speed  97,  268 

Owners  v.  Albany  448 


Pacific  Railroad  Co.  v.  Chrystal      473 

v.  Lincoln  Co.  55 

v.  Governor  of  Mo. 

628 

Paddleford  v.  Mayor  596 

Page  v.  Fazakerly  329,  330 

v.  Frankfort  140 

v.  Hardin  208,  222 

v.  State  306 

v.  St.  Louis  107,  585 


TABLE  OF  CASES    CITED. 


xli 


Page. 

Paine  v.  Spratley         67, 103,  587,  615 

Painter  v.  Pittsburg  762 

Pallister  v.  Mayor  128 

Palmer  v.  Andover  752 

v.  Hicks  165 

v.  Mayor  206,  207,  209 

v.  Stump  391 

Palmyra  v.  Morton    300,  566,  606,  617 

Paris  v.  Graham  279 

v.  People  212,  698 

Parker  v.  Commonwealth  65 

v.-Lowell  769 

v.  Mason  760 

Williamsburg  390 

Parks  v.  Boston 

107,  446,  447,  458,  690,  691,  693, 694 
Parr  v.  Attorney  General  681,  682 
Parrott  v.  Eyre  213 

Parry  v.  Berry  242 

Parsons  v.  Brainard  241 

v.  Goshen  40,  41,  375 

Passenger,  &c.  Co.  v.  Birmingham  545 
Paston  v.  Weber  220 

Patch  v.  Covington  733 

Patrick  v.  Commissioners  443 

Patterson  Gas  Light  Co.  v.  Brady  530 
Patterson  v.  Society  64, 66, 73, 166, 587 
Pattison  v.  Supervisors  134 

Patton  v.  Springfield  608 

Paul  v.  Kenosha  380,  704 

v.  Newark  474 

v.  Virginia  562 

Paulet  (Town  of)  v.  Clark  86, 477, 479 
Paxson  v.  Sweet  •    283,342,602 

Payne  v.  Brecon  387 

v.  Mayor  129 

v.  Treadwell  498 

Peabody  V.Flint  241 

Peace  v.  Augusta  596 

Peachy  v.  Somerset  298 

Pearce  v.  Milwaukee  745 

v.  Railroad  Co.  702 

Pase  v.  Cornish  40 

v.  Dayton  757 

Peek  v.  Ellsworth  749 

Pees  v.  Leads  654,  658 

Peck  v.  Austin  325 

v.  Lockwood  283 

v.  Smith  509,  525 

Pedrick  v.  Bailey  279 

Pegram  v.  County  638 

Pekin  v.  Smelzel  306,  307 

v.  Newell  726 

Pendegast  v.  Peru  287 

Pender  v.  King  197 

Pendleton  v.  Bank  of  Kentucky  162 
Pennington  v.  Taniere  373,  435 

Pennsylvania  B.R.  Co.  v.  Heister   473 
v.  Phila- 
delphia 146, 148, 150 


Page. 

Penobscot  Boom  Corp.  v.  Lawson     72 

Pennoyer  v.  Detroit  771 

Penrose  v.  Taniere  369 

Pentz  v.  ./Etna  Insurance  Co.    714,  715 

People  v.  Adams  255,  268,  315 

v.  Albany  124,  739 

v.  Attorney  General  649 

v.  Auditors  205 

v.  Bacon  657 

v.  Baker  648,  659 

v.  Bank  103,  675 

v.  Bartlett  197, 243 

v.  Batchelor  250,  251, 252 

v.  Bearfield  219,  226,  228 

v.  Bedell  185, 190 

v.  Benevolent  Society         227 

v.  Benson  528,  531 

v.  Board  of  Trade  219 

v.  Brenham  177 

v.  Brennan     128,  624,  627,  640 

v.  Brighton  455 

v.  Brooklyn     91, 456,  569,  574, 

586,  602,  608,  621,  625,  649 

v.  Carpenter 

165, 170,  241,  503, 506,  536,  670 
v.  Carrique  202 

v.  Chicago  20,  89, 563, 648,  649 
v.  Cicotte  179, 18/ 

v.  Coleman  573 

v.  Collins  619,  625 

v.  Commissioners  649,  660 
y.  Comptroller  219,  222 

v.  Conover  180 

v.  Contracting  Board  627 

v.  Cook  '  177,  241 

v.  Coon  88, 148,  388 

v.  Cornell  266 

v.  County  394 

v.  Covert       .  695 

v.  Croton  Acqueduct  Board  386 
v.  Cunningham  505,  553,  554 
v.  Davidson  119 

v.  Detroit  313,  633 

v.  Doe  584 

v.  Draper  21,  66,  78, 

168,188,241,670 
v.  Dutcher  410 

v.  Edmunds  623 

v.  Everett  661 

v.  Fairbury  154,  177,  195 

v.  Farnham  98,  166 

v.  Finger  660 

v.  Flagg  380,  384,  640 

v.  Fletcher  633 

v.  Galesburg  666 

v.  Gilbert  512 

v.  Gray  395 

v.  Halsey  649 

v.  Hatch  649 

v.  Harris  135 


xlii 


TABLE   OF   CASES    CITED. 


People  v. 


Page. 


Page. 


v.  Hartwell                    673,  674 

People  v.  Power                                  80 

v.  Hawley                             137 

v.  Pratt                                  649 

v.  Head                          934,  637 

v.  President                      63,  97 

v.  Higgins                              220 

v.  Prison  Inspectors             649 

v.  Hill                                    190 

v.  Railroad  Co. 

v.  Hilliard        634,  637,  648, 654 

103,  545,  572,  573,  671,  681 

v.  Hillsdale                          672 

v.  Ransom                               64 

v.  Holden                              667 

v.  Rector                                240 

v.  Holmes                             192 

v.  Reynolds                             64 

v.  Hurlburt           30,  66,  69,  71 

v.Richardson  665,668,671,676 

71,83,86,137,188 

v.  Rochester                  603,  694 

v.  Insurance  Co.                   241 

v.  Runkle  163,195,196,197,243 

v.  Jackson              310,  313,  503 

v.  Salomon    64, 89, 563, 621, 628 

v.  Johnson                            289 

v.  San  Francisco 

v.  Jones                                 477 

286,  370,  649,  659 

v.  Judge                         467,  468 

'    v.  Sargent                              319 

v.Kear  89,510,533,534,544,548 

v.  Scrugham                   634,  035 

v.  Kilduff       181,  634,  635,  637 

v.  Seaman                       178,668 

v.  Kimball                            468 

v.  Seymour             612,  651,  660 

v.  Kip                                    633 

v.  Slaughter           354,  356,  359 

t.  Knight                              177 

v.  Smith                         450,  451 

v.  Law                                   534 

v.  Stevens              178, 197,  243, 

v.  Lawrence                   140,  645 

622,  623,  635,  636 

v.  Lewis                                 209 

v.  Stilwell                            459 

v.  Logan  Co.                          410 

v.  St.  Louis                            321 

v.  Loomis                178, 674, 676 

v.  Stout                    63,  388,  683 

v.  Lowe                               162 

v.  Supervisors       129, 134, 204, 

v.  Lowler                               323 

206,  375,  388,  408,  412,  551, 

v.Mahany  98,69,77,78,180,203 

621, 622, 623, 624, 644, 648, 649 

v.  Marsh                                624 

v.  Sweeting                    667,  674 

v.  Martin                       239,  252 

v.  Swift                           380, 381 

v.  Matteson     178,  633,  634, 684 

v.  Tazwell                             410 

v.  Maynard                             52 

v.  Thompson                  623,  665 

v.  Mayor        f490,  342,  361,  392, 

v.  Throop                               279 

458,  557,  559,  564,  567, 

v.  Thurber                     301,  302 

568,  570,  572,  573,  622 

v.  Tieman     ,                         197 

v|McCreery           557, 572, 585 

v.  Township  Board               146 

v.  McKinney                         211 

v.  Tracy                                 649 

v.  Mead  .                407,  408,  414 

v.  Treasurer                         651 

v.  Medical  Society               219 

v.  Turner                               335 

v.  Mellen                                69 

v.  University  Regents         649 

v.  Metropolitan  Police 

v.  Utica  insurance  Uo.   655,  666 

^Board  176,188,200,636,660 

v.  Vail                            636,  668 

v.  Miner                                681 

v.  Vanderbilt 

v.  Mitchell             145,  147,  412 

84, 120,  321,  504,  506,  507 

v.  Morrell                 66,  170,  203 

v.  Van  Slyck          667,  668,  676 

v.  Morris        5,  29, 63, 72,  82, 98 

v.  Walker                              266 

v.  Mott                                  266 

v.  Warren                              213 

v.  Mearing                            448 

v.  Wetherell          182, 197,  673 

v.  New  York                 634,  667 

v.  Wharf  Co.                          120 

v.  Mies                                592 

v.  White                         244,  624 

v.  Oakland  Bank                  674 

y.  Wiant                              628 

v.  Onandaga                           91 

v.  Wilson                       350,  352 

v.  Pacheco                             650 

v.  Winnehammer                713 

v.  Pearson                            661 

v.  Wood                               212 

v.  Pease                               184 

v.  Works                               300 

v.  Phillips                     '         175 

v.  Wren              63,  72,  152, 154 

v.  Police  Justice                  362 

v.  Yates                                653 

v.  PontiacBank                   674 

Peoria  v.  Calhoun                      283,  284 

v.  Potter                                96 

Perdue  v.  Ellis           272,  279,  306,  307 

TABLE   OF   CASES  CITED. 


xliii 


Page. 

Perm  v.  Carey  424,  426.  429 

Perkins  v.  Insurance  Co.  377 

v.  Weston  265 

Perley  v.  Georgetown       724,  728,  729 

Perry  v.  Dover  236,  237 

v.  Tyner  249 

v.  Worcester  740,  769,  775 

Pesterfleld  v.  Vickers        189,  279,  732 

Peterborough  v.  Lancaster  237 

Petersburg  v.  Mappin  389 

v.  Metzker  291,  310 

Peterson  v.  Mayor 

135,  323,  378,  380,  383,  384 
Pettigrew  v.  Evansville  741,  771 

Petty  v.  Tooker  175 

Peyton  v.  Hospital  269 

Philadelphia  v.  Cooke  617 

v.  Eastwick  567 

v.  Field 

73, 82, 89, 90, 91, 519, 558 
v.  Flanigan  20,23,132, 

375 

v.  Given  203,  208 

v.  GreMe  616 

v.  Railroad  Co.  431,  498, 

513,  533,  535,  545,  567 

v.  Try  on  567,568,569,609 

v.  Wistar  616 

Phillips  v.  Albany  145 

v.  Allen  293,  297,  330 

v.  Bloomington  126 

v.  Coffee  172 

v.  Mayor  203 

v.  Veazie  768 

v.  Wickham  154, 197,  299 

Physicians  v.  Salmon  160 

Piemental  v.  San  Francisco 

246,  255,  369,  378,  383, 433,  704 

Pierce  v.  Bartram  299,  318,  322 

v.  Boston  612 

v.  Carpenter  165,  170 

v.  Ricnardson         211,  257,  258 

v.  Somerworth  162 

Pike  County  v.  State  649 

Pike  v.  Middletown  140,  141 

v.  New  Orleans  207 

Pillsburg  v.  Springfield  456 

Piper  v.  Chappel  292,  337,  344 

v.  Singer  560 

Pitts  v.  Bonner  668 

Pittsburg  v.  Grier  124,  737 

v.  Scott  504 

v.  Wood  568 

Pittson  v.  Clark  -     40 

Placerville  v.  Wilcox  590 

Plant  v.  Railroad  Co.  538 

Player  v.  Jenkins  322 

Plimpton  v.  Somerset        84,  341,  357 

Plum  v.  Canal  Company  524 

Plunkett  Township  v.  Jefferson  Co. 

170 


Page. 

Plymouth  v.  Jackson  92,  94, 168 

v.  Painter  197 

v.  Pettijohn      299,  300,  562 

Police  Commissioners  v.  Louisville 

78, 188 , 

Police  Jury  v.  Shreveport  75,  84 

v.  Villaviabo  300 

v.  Succession  of  Mc- 

Donough  145 

Polk  v.  Plummer  42 

Pollard's  Lessee  v.  Hagan       117,  120 

Pollock  v.  Laurence  County    642,  659 

Pomeroy  V.  Mills  519 

v.  Railroad  Co.  534 

Pond  v.  Negus  255,  274 

Pool  v.  Bentley  435 

v.  Boston  135, 207 

Pope  v.  Headen  615 

Poppen  v.  Holmer  297 

Porter  v.  Blakely  164 

v.  Railroad  Co. 

172,  533,  535,  539,  540 

Port  Gibson  v.  Moore  159 

Portland  v.  Bangor  335 

v.  O'Neill  302,  597 

v.  Richardson  766,  767 

Portsmouth,  &c.  Co.  v.  Watson         96 

Port  Wardens  v.  Pratt  117 

v.  Ship  117 

Postmaster  General  v.  Rice  193 

Potter  v.  Luther  211 

Potts  v.  Henderson  213 

Pottsville  v.  Curry  195 

Poulters  Co.  v.  Phillips  281,  346 

Poultney  v.  Wells  90,  94,  378 

Pow  v.  Becker  189 

Powel  v.  Madison  593 

v.  St.  Joseph  601 

Powers  v.  Sanford  705,  706 

v.  Superior  Court  144 

v.  Wood  Co.  167 

Poweshiek  Co.  v.  Ross  264 

Powles  v.  Page  269 

Prather  v.  Lexington  715 

Pratt  v.  State  166 

v.  Swanton  236,  237 

Pray  v.  Jersey  City  747,  757 

v.  Northern  Liberties  586 

Preble  v.  Portland  254 

Presbyterian  Church  v.  Mayor       275 

Prescott  v.  Duquesne  124,  621 

President  v.  Indianapolis  433 

v.  Holland  341 

v.  Myers  163 

v.  O'Malley  257,  287 

v.  Thomson  154 

Preston  v.  Bacon  207 

v.  Boston  705, 706 

Prettyman  v.  Supervisors        134, 145 

v.  Tazwell  Co.  130 

Price  v.  Church  499 


xliv 


TABLE  OE  OASES  CITED. 


Page. 

Price  v.  Commissioners  639 

v.  Harned  652 

v.  Thomson  478, 499,  508 

v.  Railroad  Co.  255 

Priestly -v.Foulds  153 

Prigden  v.  Bannerman  458 

Primm  v.  Belleville 

560,  563,  575,  590,  591 
Prindle  v.  Fletcher  754 

Pritchard  v.  People  243 

v.  Stevens  142 

Pritz  (Ex  parte)  67 

Proprietors  (Church)  v.  Slack         265 
Proprietors  v.  Horton  63,  97 

Protzman  v.  Railroad  Co. 

510,  534,  540,  548 
Providence  v.  Clapp  748,  754 

Pulaski  Co.  v.  Lincoln  249 

Purdy  v.  People  67?  72 

Pursley  v.  Hays  445 

Putnam  County  v.  Allen  County    640 
Putnam  v.  Johnson  175 


Q 


Queen  v.  Durham  196 

v.  Charlestown  528,  534,  542 

v.  Gas  Company  534,  542 

v.  Governors  208,  222 
v.  Halifax  Eoad  Trustees    649 

v.  Mayor  225 

v.  Saddlers  Co.  227 

Quincy  v.  Ballance  340,  341 


E 


Raab  v.  Maryland  '  165 

Rabassa  v.  Mayor  '  560, 590 

Radcliff's  Executors  v.  Brooklyn 

740,  742,  743,  745 

Radway  v.  Briggs  124 

Ragan  v.  McCoy  476,  477 

Ragatz  v.  Dubuque  460,  468 

Ragnet  v.  Wade  213 

Railroad  Co.  v.  Adams      533,  538,  545 

v.  Alexandria     100, 101, 

577,  582,  585,  595 

v.  Applegate 

534,  536,  545,  548 
v.  Ball  473 

v.  Baltimore 

109,  273,  536,  537,  544 
v.  Banker  476 

v.  Brooklyn  R.  R.  Co. 

535 
v.  Brown  536 

v.  Brownell  501 

v.  Buchanan  Co.  Ill,  410 
v.  Buffalo  330,  540 

v.  Charlestown  594 


Railroad  Co.  v.  Chenon  98,  541 

v.  Clagborn  366 

v.  Clute  595 

v.  Collett  473 

v.  Commissioners  64, 145 
v.  Connelly 

68,  559,  564,  570,  595 
v.  Dailey  533 

v.  Dalby  54 

v.  Davis  442 

v.  Decatur  538,  541 

v.  Deitz  546 

v.  Doughty  471,  474 

v.  Duquesne  551 

v.  Elevator  Co.  509 

v.  Evansville      107, 129, 

130,148,407,411 
V.  Galena  541 

v.  Greely  450 

v.  Gregory  69 

v.  Heath  468 

v.  Hunter  473 

v.  Ingles  211 

v.  Kerr  535 

v.  Lafayette  595 

v.  Leavenworth 

501,  535,  544,  548 
v.  Marion  Co.  109,  412 
v.  Marvin  363 

v.  Memphis  542 

v.  Miller  468 

v.  Morgan  Co.     592,  595 
v.  Moye  473 

v.  Mt.  Pleasant    601,  689 
v.  Municipality 

113,  533,  535 
v.  Napa  Co.  626 

v.  Nesbit  458 

v.  Newark  537 

v.  New  York 

107,  110,  535,  545 
v.  O'Daily 

510,  540,  545,  548 
v.  Otoe  Connty  148,  394 
v.  Owings  460 

v.  Payne  537 

v.  Philadelphia 

502,  534,  544 
v.  Platte  County  111,  410 
v.  Plumas  Co.  65,  98,  651 
v.  Prudden  506 

v.  Quigley  724 

v.  Railroad  Co.  440,  535, 

545,  546,  547,  548 
v.  Schurmier  119 

v.  Shields 

507,  536,  537,  538 
v.  Spearman 

167,  570,  587,  595,  600 
v.  State         595,  623,  697 


TABLE  OF  CASKS   CITED. 


xlv 


Page. 

Railroad  Co.  v.  Supervisors  565 

v.  Veeder  392 

v.  Whipple  691 

v.  Winthrop        120,  121 

v.  Wright  594,  595 

Ealeigh  v.  Dougherty  312 

v.  Sorrell  242,  3?9 

Ramsey  v.  Riley  214,  215 

Rand  v.  Townsend  458 

v.  Wilder  236,  237,  239 

Randall  v.  Van  Vechten 

372,  373,  374,  377,  381 

Rankin  v.  Beaird  76 

Ransom  v.  Boal  431 

Rathbun  v.  Acker  577,  580,  606 

Ray  v.  Lynes  739 
Reading  v.  Commonwealth 

83,  89,  501,  502,  503,  651 

v.  Kepplerman  743 

Ready  v.  Mayor  '    732 

Rector  v.  State  358 

Red  v.  Augusta  255 

Reddall  v.  Bryan  447,  460 

Reddick  v.  Amelia  125 

Redfield  v.  Railroad  Co.  510 

Reed  v.  Belfast  720,  749 

v.  People  299,  300 

v.  Toledo  455 

Rees  v.  Watertown  647 

Reeves  v.  Treasurer  Wood  County 

448,  564,  587 

Regina  v.  Anderson  673 

v.  Archbishop  649 

v.  Avery  179 

v.  Bewdley  152,  159 

v.  Bradley  179 

v.  Brucher  46 

v.  Canal  Co.  624,  649 

v.  Chapman  658 

v.  Deighton  179 

v.  Derby  177,  632,  667 

v.  Derbyshire  551 

v.  Dock  Co.  625 

v.  Eye  657,  663 

v.  Gloucester  200 

v.  Greene  673 

v.  Grimshaw  235 

v.  Hammond  179 

v.  Heathcote  622,  662,  663 

v.  Hiorns  177,  632 

v.  Hoyle  178 

v.  Ipswich  164 

v.  Ledyard  177,  654,  655 

v.  Leeds  629,  632,  667 

v.  Liverpool  681 

v.  Mayor  349 

v.  Newbury  224,  225 

v.  Nott  696 

v.  Oxford  220 

v.  Paramore  29 


Regina  v.  Pembroke  629 

v.  Railroad  Co.  696 
v.  Registrar  Stock  Co.        162 

v.  Ricketts  220 

v.  Rogers  225 

v.  Rowley  178 

v.  Sheffield  Gas  Co.  528 

v.  Slatter  632 

v.  Southampton  659 

v.  Stamford  659 

v.  Sutton  220 

v.  Tart  179 

v.  Telegraph  Co.  531 

v.  Tewksbury  177 

v.  Thomas  236 

v.  Train                 528,  534,  542 

v.  Treasury  225 

v.  Turnpike  Roads  629 

v.  Whipp  236 

v.  York  29 

Reiff  v.Conner  254,274 
Reilly  v.  Philadelphia 

383,  390,  391,  605,  733 

Reiman  v.  Shepard  593 

Reinboth  v.  Pittsburg  129 

Renthrop  v.  Bourg  497 

Reock  v.  Newark  392,  746 

Respublica  v.  Caldwell  321 

v.  Dallas  202 

v.  Duquet  336 

v.  Sparhawk  712 

Rex  v.  Abingdon        629,  654,  655, 658 

v.  Amery  151, 158, 166 

v.  Andover  222,  225 

v.  Ashwell  274,  292 

v.  Atkyns  191,  234 

v.  Atwood  348 

v.  Avery  675 

v.  Axbridge  227 

v.'Babb  266, 637 

v.  Bailiffs,  &c.  Ill,  626 

v.  Bankes  630 

v.  Bank  of.England  625,  637 

v.  Barber  Surgeons  277 

v.  Barker  221,  619,  620 

v.  Barnard  184 

v.  Bedford  632,  666 

v.  Benchers  of  Grey's  Inn      623 

v.  Bellringer  231,  232 

v.  Birmingham  Railroad  Co.  699 

v.  Bond  201 

v.  Bower  198,  232 

v.  Bridgman  266 

v.  Bristol  637 

v.  Brown  672 

v.  Buller  637 

v.  Bumstead  175, 185 

v.  Cambridge 

175,  629,  630,  634,  655,  659 

v.  Canal  Co.  649,  651 


xlvi 


TABLE    OP    CASES' CITED. 


Page. 
Rex  v.  Campion  637,  661 

v.  Carlisle  224,  505,  554 

v.  Carmathen  227 

v.  Carter  231,  233 

v.  Chalke 

216, 217, 224, 225, 226, 227,  228,  229 
v.  Chester  106,  111,  671 

v.  Chitty  175,185,225 

v.  Clapham  265 

v.  Clarke  658 

v.  Colchester  630,  634 

v.  Commissioners      361,  619,  629 
v.  Company  347 

v.  Conyers  642 

v.  Cottrell  322 

v.  Coventry  222 

v.  Croke    "  242 

v.  Cross  505,  553,  554 

v.  Cusack  670 

v.  Dawes  233,  672 

v.  Dean  191 

v.  Debenham  267 

v.  Derby       224,  228,  630,  652,  658 
v.  Devonshire  232 

v.  Doncaster 

194,217,222,225, 
v.  Dublin 
v.  Durham 
v.  Earle 
v.  Egerly 
v.  Everett 
_  v.  Exeter 
v.  Feversham     217, 
v.  Fishermen 
v.  Fowey 
v.  Frost 
v.  Gaborian 
v.  Gloucester 
v.  Godwin 
v.  Greene 
v.  Griffiths 
v.  Grimes 
v.  Grosvenor 
v.  Gwyn 

v.  Harris  225, 

v.  Harrison 
v.  Hastings 
v.  Head 
v.  Headley 
v.  Health 
v.  Heaven 
v.  Hebden 

v.  Hereford         653,  654,  655, 
v.  Hertford 
v.  Hill 
v.  Hiorns 
v.  Hodge  673 

v.  Hopkins  637 

v.  Hughes  199,  201 

v.  Hungerford  198 


229,  235, 


176, 
227,  228, 

658. 


227, 
227, 
153, 

227,  236, 

278, 

111,  350, 


252 

652 

195 

194 

505 

625 

658 

235 

348 

662 

650 

231 

655. 

200 

637 

235 

235 

198 

267 

673 

347 

626 

242 

232 

175 

217 

233 

658 

241 

235 


Rex  v. 

v. 

V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
V. 
*  V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
V. 
V. 
V. 

V. 
V. 


Ingram  265 

Inhabitants  690 

Ipswich 
225,  227,  228,  265,  637,  657,  661 


553,  554 
153 
652 
649 
199,  200,  225 
235 
178 

907 

198, 199,  629,  632 
129 


Jones 
Kent 
Kingston 
Lancashire 
Lane 

Langhorne 
Leeds 
Leicester 
Leyland 
Lichfield 
Liverpool 

217, 227, 225, 227, 228, 235, 252, 629 

London  14, 226 

Lord  George  Gordon  268 

Lucas  266,  637 

Lyme  217,  218,  222,  228 

Mallet  175 

Margate  Pier  Co.  648 

Marshall  202 

Marten  673 

May  232, 235 

Mayor     175,185,208,225,243, 

637,  661,  665,  696 

152,  231,  232,  277 

175,  231,  232 


Miller 

Monday 

Moore  554 

Morely  361, 694 

Morris  151, 231 

Mothersell  257,  267,  268 

Newbury  653, 656 

Newcastle  266,  637 

New  Radnor  -                 673 

Nicholson  666 

Norwich 

629,  630,  654,  657,  659,  660 

Nottingham  265, 626 

Ogden  673 

Osbourne  152 

Oxford  , 

222,  225,  235,  630,  648,  654,  655 

Oxfordshire  696, 699 

Oxon  637 

Parry  672, 673 
Passmore 

152,  154,  156,  159, 166, 196 


.  Pateman 

201 

.  Patterson 

199,  200,  201 

.  Payne 

199,  673 

.  Phillips 

194 

•.  Pigram 

265 

,  Plymouth 

655 

.  Pom  fret 

659 

.  Ponsonby 

217 

.  Poole 

197 

.  Powell 

673 

.  Purnell 

216 

TABLE   OF    CASES    CITED. 


xlvii 


Page. 

Eex  v.  Quayle  673 

v.  Radford  630 

v.  Railway  Co.  622 

v.  Railroad  Co.  696 
v.  Richardson 

216,  217,  223,  224,  225,  227,  228 

v.  Ripon  199,  200 

v.  Rogers  349 

v.  Rowe  227 

v.  Russell  505,  553,  554 

v.  Salop  662 

v.  Salway  106 

v.  Sandys  220 

v.  Saunders  153,  156,  669 

v.  Sawyer  632 

v.  Scarborough  629 

v.  Shelly  266,  637 

v.  Shrewsbury  227,  235 

v.  Slatford  637 

v.  Slythe  673 

v.  Smart  231 
v.  Smith      267,  653,  654,  655,  657 

v.  Spencer  175,  185 

v.  Stewart  151 

v.  St.  Martin  629 

v.Taylor  217,225,226 

v.  Theodorick  235,  236 

v.  Thetford  267,  629 

v.  Thornton  194 

v.  Tidderly  200,  211 

v.  Tizzard  202 

v.  Toneboy  227 

v.  Tooley  658 

v.  Totness  223 

v.  Tower  637 

v.  Tregony  152,  629,  656 

v.  Trelawney  200 

v.  Trevenon  673 

v.  Truro  223,  630 

v.  Varls  231 

v.  Ward  503,  553 

v.  Wardroper  672 

v.  Warlow  673 

v.  Watson  212 

v.  Wells  224,  225 

v.  West  Looe  223,  657 

v.  West  Riding  551 

v.  Westwood  242 

v.  Whitwall  196,  675 

v.  Wigan  658 

v.  Wildman  265,  652 
v.  Williams         241,  625,  666,  673 

v.  Willis  652 

v.  Wilton  227 
v.  Winchester    178,  629,  632,  634 

v.  Woodrow  198,  199,  629 

v.  Yates  224 

v.  York  631,  659 

v.  Yorkshire  623 

Reynolds  v.  Albany  135 


Page. 
Reynolds  v.  Baldwin 

75,  186,  241,  633,  665,  666 

v.  New  Salem  236 

v.  Shreveport    133,  743,  745 

v.  Stark  County         89,  431 

v.  Taylor  640 

v.  Thomson  623 

Rhines  v.  Clark  341,  357,  360 

Rhodes  v.  Cincinnati  744 

v.  Cleveland  739 

v.  Dunbar  318 

Rice  v.  Keokuk  134 

v.  Smith  631 

v.  State  310,  312,  360 

Richards  v.  Daggett  169,  170 

Richardson  v.  Baltimore         460,  679 

v.  Boston  122,  774 

Scott  372 

Turnpike  Co.  551 

Richland  Co.  v.  Lawrence 

72,  80,  85,  169 
Richmond  v.  Daniel  595 

v.  Judah  706 

v.  Long's  Administrator 

83,  709,  722,  732,  734,  736 

v.  State  428 

Riddle  v.  Bedford  192 

v.  Proprietor  of  Locks  and 

Canals    153,  717,  718,  719,  721 

Rideout  v.  School  District  236 

Riggs  v.  Johnson  Co.  404, 641,  643,  662 

Ring  v.  Johnson  Co.  173,  394,  646 

Ripon  v.  School  District  707 

Risley  v.  St.  Louis  606,  611 

Robbins  v.  Raailroad  Co.         471,  473 

Roberts  v.  Chicago  743,  745 

v.  Easton  545 

v.  Mayor  683 

v.  Ogle  285,  317,  319,  335 

Robertson  v.  Rockford  145 

Robie  v.  Sedgwick  97 

Robinson  v.  Bidwell  145 

v.  City  Council  706 

v.  County  695 

v.  Lane  159 

v.  Mayor  306 

v.  Railroad  Co.  540 

v.  Robinson  473 

v.St.  Louis  137,372 

Rochester  v.  Collins  739 

(corporation  of)  v.  Lee  161 

v.  Pettinger  328 

Rochester  White  Lead  Co.  v. 

Rochester  735,  739,  769 

Rogers  v.  Burlington 

139,  130,  148,  286,  403, 406, 407 
v.  Jones 

266,  285,  286,  310,  329,  347 
Roll  v.  Augusta  539,  743,  745,  770 

Roman  v.  Strauss  506 


xlviii 


TABLE   OF   CASES   CITED. 


Page. 
Kome  v.  Cabot  139,  366 

v.  Chapin  164 

v.  Omberg  743,  745 

Rome  Railroad  Co.  v.  Rome  595 

Roosevelt  v.  Draper  679,  683,  685 

Rose  v.  Turnpike  Co.  154 

Rosebaugh  v.  Saffln  21,  294,  296 

Ross  v.  Madison  264,  369,  774 

v.  St.  Charles  768 

Rouge  v.  Deering  352 

Rounds  v.  Mansneld  142,  215 

v.  Mumford  346,  740,  743 

v.  Stetson  142 

Rowan  v.  Portland  507 

Rowell  v.  Williams  665,  763 

Rows  v.  Addison  735 

Roxbury  v.  Railroad  Co.  537 

Ruby  v.  Abysm.  Society  382 

Rudolphe  v.  New  Orleans  734 

Ruggles  v.  Collier  109 

v.  Nantucket  109,  713 

Ruhlman  v.  Commonwealth  458,  690 
Rumsey  v.  Campton  176 

Rundle  v.  Baltimore  694 

Runyon  v.  Bordine  503,  505,  506 

Ruppert  v.  Baltimore  391 

Rush  v.  Davenport  757 

v.  Des  Moines  County  23 

Russ  v.  Mayor  280 

Russell  v.  Chicago  190 

v.  Devon  Co.  718,  719 

v.  New  York  713,  716,  731 
Rutherford  v.  Taylor  478,  507 

Rutter  v.  Chapman  46 

Ryan  v.  Copes  318 

v.  County  614 

Ryder  v.  Railroad  Co.  97 


Sacramento  v.  Crocker  573,  597 
v.  Kirk  370 
Saddler  v.  Wall  209 
Salem  v.  Railroad  Co.  317 
Salem  Mill  Dam  v.  Ropes  40 
Salisbury  v.  Philadelphia  378 
Salter  v.  Reed  617 
Salstonstall  v.  Banker  319 
Sampson  v.  Goochland  551 
San  Antonio  v.  Jones  145 
v.  Lewis  263,  370 
Sanborn  v.  Deerfield  41 
Sanders  v.  McLin  582 
Sanderson  v.  Cross  591 
Sanford  v.  Augusta  749 
v.  Tremlett  173 
San  Francisco  Gas  Co.  v.  San  Fran- 
cisco 377 
San  Francisco  v.  Hazen  246 
Sargeant  v.  Bank  477 


Sarocco  v.  Geary 
Sater  v.  Plank  Road  Co. 
Satterlee  v.  San  Francisco 
Saunders  v.  Haynes 
Savacool  v.  Boughton 
Savage  v.  Bangor 

v.  Gulliver 
Savannah  v.  Charlton 

v.  Collins 

v.  Hartridge 

v.  Hussey 

v.  State 

v.  Steamboat  Co. 
Savings  Bank  v.  Winchester 


713 

472,  473 

433 

176 

213 

754' 

690 

301,  302 

739 

473,  577,  592 

311,  356 

649 

99,  508 

368 


Savings  Fund  Society  v.  Philadel- 
phia 73 
Sawyer  v.  Alton                               575 
v.  Corse                                 736 
v.  Norshfield                        699 
v.  Williams                        170 
Scadding  v.  Lorant            244,  252,  253 
Scammon  v.  Chicago          577,  606,  763 
Seaming  v.  Conger                           292 
Schaffer  v.  Cadwallader           433,  641 
Schenck  v.  Peay                                250 
Schenley  v.  Alleghany              565,  568 
v.  Commonwealth 

93, 109,  589,  601,  602,  611 

Schoollred  v.  Charleston  624 

School  v.  Canal  153 

School  Com.  v.  Dean  61 

School  Directors  v.  Anderson  621 

v.  Dunkelleoger   428 

School  District  v.  Atherton     195,  236. 

239,  258, 262 

v.  Blakeslee    162,  237, 

238,  267 

v.  Lord  265 

v.  Richardson  170 

v.  Tapley  170 

v.  Thompson  395 

etc.  v.  Wood  40 

Schroder  v.  City  Council  291,  350 

Scofleld  v.  School  District         135, 682 

Scott  v.  Manchester  736,  737 

Scovil  v.  Cleveland 

98,  243,  557,  570,  603 


v.  Giddings 
Scudder  v.  Trenton 
Seagraves  v.  Alton 
Seale  v.  Mitchell 
Seamen  v.  Patten 
Sears  v.  West 

Secretary  v.  McCarrahan  627,  645J  663 
Seiple  v.  Elizabeth  City 
Selectmen  v.  Spaulding 
Semmes  v.  Columbus 
Serrot  v.  Omaha 
Serrill  v.  Philadelphia 
Severin  y.  Eddy  765,  767 


744 
451 
370 
351 
209 
301,  597 


111,  193 
597 
388 

760,  761 


TABLE   OF   CASES   CITED. 


xlix 


Seybert  v.  Pittsburg  129,  403 

Shackford  v.  Newington  144 

Shafer  v.  Mumma 

186,  187,  812,  320,  334,  341,  351, 352 

Shaffner  v.  St.  Louis  451 

Shallcross  v.  Jeffersonville  126 

Sharon  Iron  Co.  v.  Erie  431 

Sharp  v.  Dunoven  .598 

v.  Johnson  576,  615 

v.  Spier  576,  586,  615 

Sharpless  v.  Mayor    144,  146,  467,  557 

Shattuck  v.  Woods  207 

Shaver  v.  Starrett  466 

Shaw  v.  Dennis  145, 558 

v.  Kennedy  297 

v.  Mayor  207,  208,  691,  693 

v.  Pickett  612 

Shawnee  Co.  v.  Carter  383 

Sheehan  v.  Gleason  109 

Sheffield  v.  Watson  212 

Shelbourne  v.  Yuba  Co.  734 

Sheldon  v.  School  District        107,  688 

Shelby  Co.  v.  Eailroad  Co.         91,  558 

Shelton  v.  Mobile  326,  327,  347 

Shepherd  v.  Chelsea  752 

v.  Municipality  122 

Shepardson  v.  Colerain  754 

Shepley  v.  Fifty  Associates  755 

Sherburne  v.  Fiske  209 

Sherman  v.  McKeen  509 

Sherwin  v.  Bugbee 

97, 98,  106,  236,  237,  238 
Shirley  v.  Lunenburg  360 

Shoalwater  v.  Armstrong  582 

Shoemaker  v.  Goshen  412 

Shook  v.  State  210 

Shotwell  v.  Mott  429 

Shrader  ex  parte  138 

Shrewsbury  v.  Brown  378 

Shurmeirr  v.  Eailroad  Co. 

476,477,478,510 

Siebrecht  v.  New  Orleans         366,378 

Sights  v.  Yarnalls  580,  626 

Sikes  v.  Hatfield  203,  373,  382 

v.  Eansom  620 

Sill  v.  Corning  168,  285,  361 

v.  Lansinburg  431, 435 

Silliman  v.  Wing  706 

Silverthorn  v.  Railroad  Co.  660 

Simonds  v.  Gardner  606 

v.  Mumford  456 

Simmons  v.  Nahant  170 

v.  State  597 

Simpson  v.  Savage  100 

Sixth  Avenue  Eailroad  Co.  v.  Kerr  545 

Skinkle  v.  Covington  124,  737 

Skinner  v.  Bridge  Co.  743 

v.  Hutton  575 

Skinners  Co.  v.  Irish  Society  681 

Slack  v.  Railroad  Co.        107,  134,  144 

E 


Page. 
Slater  v.  Wood  186, 187 

Slatten  v.  Eailroad  Co. 

535,  536,  540, 545 

Slaughter  v.  Commonwealth   301,  565 

v.  People  313 

Slee  v.  Bloom  195, 197 

Sleeper  v.  Bullen  689 

Sloan  v.  McConahy  428 

v.  State  72,  98 

Small  v.  Danville  83,  731 

Smead  v.  Railroad  Co.  375,  386 

Sm'elson  v.  State  708 

Smith  v.  Aberdeen  559,  570 

v.  Adrian  168 

v.  Appleton  88, 158 

v.  Barrett  431 

v.  Cheshire  106,  394,  395 

v.  Cincinnati  744 

v.  Commissioners  204,  261 

v.  Commonwealth  203 

'v.  County  205 

v.  Cronkhite  191 

v.  Darley  235,  251 

v.  Dedham  749 

v.  Gates  142 

v.  Helmer  67 

v.  Hueston  507 

v.  Huntington  142 

v.  Hutchinson  706 

v.  Kernochen  101 

v.  Knoxville  279 

v.  Law  251,  252 

v.  Madison  104,  302 

v.  Marston  560 

v.  Mayor  384,  386 

v.  McCarthy      64, 178,  273,  666 

v.  Metropolitan  Gas  Co.       528 

v.  Milwaukee  391, 772 

v.  Morse       87,  91,  109,  110, 131 

v.  Natchez  Steamboat  Co.    195 

v.  New  York  180,  203,  208 

v.  Railroad  Co.  160 

v.  Eedfleld  706 

v.  Sac  Co.  414 

v.  Sacramento  389 

v.  San  Antonio  359 

v.  Smith  152,  207,  219 

v.  State  197,  503 

v.  Turner  560 

v.  Warden  445 

v.  Washington  524,741,743,744 

v.  Wendell  753„754 

Smoot  v.  Hart  114 

v.  Wetumpka  551,  757 

Snyder  v.  Eockport 

121,  540,  740,  743,  745 
Society  v.  Commonwealth  223, 224, 228 
v.  Van  Dyke  227 

Society,  &c.  v.  New  London 

144,  408,  411,  414 


TABLE  of  cases  cited. 


Page. 
Society,  &c.  v.  Pawlet  98 

v.  Young  160 

Soper  v.  Henry  Co.  32,  716,  747 

Soul'ard  v.  St.  Louis  727 

South  Bay  &  Co.  v.  Gray  195 

Southgate  v.  Covington  598 

Southworth  v.  Railroad  Co.  67 

*  Soutter  v.  Madison  ' 

87, 158,  638,  639,  641,  657,  659,  663 

Sower  V.Philadelphia  271,455,460,461 

Spaulding  v.  Lowell        36,  41,  42,  103 

105, 106, 107,  323,  375, 751,  753 

Sparhawk  v.  Salem  751,  753 

Spear  v.  Robinson  176, 239 

Specht  v.  Commonwealth  332 

Speed  v.  Crawford  78 

Speer  v.  School  Directors  144 

Sprague  v.  Worcester        740,  769,  775 

Sprawl  v.  Lawrence  191 

Spray  v.  Thompson  458,  460 

Springfield  v.  Hampden  653 

v.LeClaire  764 

y.  Railroad  Co,      533,  537 

Stackpole  v„  Healy  525 

Stadler  v.  Detroit       182,  207,  222,  226 

Staniland  v.  Hopkins  200,  202 

Stafford  v.  Albany  458 

Stanton  v;  Springfield  748, 754 

v.  Camp  371 

Starin  v.  Genoa  145, 146, 

147, 150,  407,  411 

Starr  v.  Rochester  726 

v.  Trustees  361 

v.  Wilmington  186 

Stein  v.  Mobile  594 

Stewart  v.  Baltimore  460,  467 

Stickney  v.  Salem  750 

Stites  v.  Curtis  509 

Stinson  v,  Gardiner  750,  753 

St.  John  v.  East  St.  Louis  575/ 

v.  New  York       322,  324,  553 

St.  Joseph  v.  St.  Anthony  611 

v.  Hamilton  456 

v.  Railroad  Co,  593 

St.  Louis  v.  Alexander 

64,  99,  147, 148,  410 

v.  Allen  44,  82,  167, 

600,  614,  615 

v.  Benton  279 

v.  Bent?  310, 334 

v.  Boffinger  272,  315 

v.  Cafferata         279,  310,  332 

v.  Clemens 

109, 566, 603, 609, 61Q,  6, 1 1, 612 

v.  Coons  611 

y.  De  None  612 

.  v.  Eters  109 

v.  Ferry  Co.  592,  593 

v.  Grove  '  304 

v.  Gurno  5.25,  745 


Page. 
St.  Louis  v.  Jackson  322,  326 

v.  McCoy  315 

v.  McLaughlin  577,597 

v.  Merton  435 

v.  Russell 

44,82,167,600,614,615 
v.  Smith  308 

v.  Weber 

280,  284,  286,  328,  327 
v.  Wiggins  Ferry  Co. 

592,  594 
St.  Louis  Hospital  v.  Williams  162 
St.  Louis  Public  Schools  v.  St. 

Louis  ■'  586 

St.  Louis  Co.  Courts  v.  Sparks  633,634 
St.  Louis  Hospital  v.  Williams  162 
St.  Paul  v.  Coulter 

69,  272,  282,  283,  284,  322,  327 

v.  Laidler  327 

v.  Troyer  308 

State  v.  Allen  200,  202 

v.  Ams  332 

v.  Ancker  200 

v.  Atkinson  503 

v.  Auditor  634 

v.  Avenue  Railway  Co.         302 

v.  Bailey    620, 631, 648,  650,  653 

State  Bank  v.  Brackenridge  595 

v.  Madison  583,  595 

v.  Navigation  Co.  75 

State  v.  Barksdale  '  697 

V,  Bell  337 

v.  Beloit  432,  639,  641 

v.  Bergen  273,  567 

v.  Bill  691,  693,  695 

v.  Binder  65,  277 

v.  Blanchard  175 

v.  Board  648 

v.  Board  of  Education  627 

V.  Bonner  622 

v.  Boscawen  697 

v.  Bradford  671 

v.  Branin  101,  582 

v.  Bryce 

218,  220, 226,  227,  228,  667 
V.  Buffalo  187,  337,  371 

v.  Burlington  212, 698, 749 

v.  Burnett  676 

v.  Carpenter  551 

v.  Canterbury  63, 165 

v.  Castiriel    *  176 

v.  Chamber  of  Commerce 

219,  220 
v.  Charleston  350,  665,^672 

v.  Choate  667 

v.  Cincinnati  Gas  Co.      '    ; 

73, 110,  274,  503,  513,  528 
529,  531,  621,  665,  671, 675 
v.  City  Council 

117,  562,  584,  595,  596 


TABLE   OF   CASES   CITED. 


Page. 
State  v.  Clark     101,  272,  276,  307,  310 
v.  Clegg  361 

v.  Cleveland  289 

v.  Clerk  181 

v.  Clunet  458 

v.  Cockrell  183,458,460,693,695 
,v.  Conlin  356 

v.  Commissioners 

212, 627, 643,  650,  665,  695,  698 
v.  Common  Council  224, 226 
v.  County  Auditor  640 

v.; County  Judge 

69, 631, 639, 640, 650, 653, 661 
v.  Cowen  310,  313,  332,  334 

v.  Curran  63 

V.Custer  620,621,622 

v.  Davenport    639,  640, 642, 643 
v.  Dean  569 

v.  Delesdenier  42 

v.  Deliesselime 

183,  232,  247,  634,  696 
v.  Dews  78 

v.  Digby  473 

v.  Directors  386 

v.  Donahay  237*,  693 

V.  Dunn  634 

v.  Dunnington  214 

v.  Eastabrooke  206 

v.  Elizabeth  601,  603,  606 

V.  Elkinton        657, 659, 661, 663 
v.  Elwood  653 

ex  rel.  v.  St.  Louis,  County 

Court  79 

v.  Fairchild  652 

v.  Fenley  395 

v.  Findley  191,192 

v.  Fitzgerald  180, 181,  362 

v.  Foster  255 

v.  Freeholders  628 

v.  Freeman      276,  279,  319,  334 
v.  Fullerton  560 

v.  Funk  181,  182,  362 

v.  Furguson  199,  201,  %% 

v.  Garlock  306 

v.  Gates  ,        657, 663 

v.  Georgia  216 

v.  Gergia  Medical  Society     219 
y.  Giles  176, 177 

v.  Gilmanton  165 

v.  Glasgow  212 

V.  Glennon  34 

v.  Gorham  551,  698 

v.  Governor  181 

v.  Graves 

110, 274, 456, 427, 467, 621,  649 
Great  Works  Milling  Co.  698 
Gutterrez  350,  356,  358,  360 
Hamilton  687 

Hand  603 


State 


v. 
v. 
v, 
v. 
v.  Halen 


648 


Page. 

v.  Halifax 

576 

v.  Harper 

212 

v.  Harris 

306 

v.  Haskell 

367 

v.  Hastings 

153 

v.  Hay 

319 

v.  Herod 

303,  545,  546,  594 

v.  Hill 

476 

v.  Hoboken 

302,  545,  579 

v.  Hoyt 

202,  254 

v.  Hudson 

286,  567, 605,  609, 

691,  693,  697,  699 

v.  Hug 

456,  641 

v.  Huggins 

183,  232,  247 

v.  Hull 

319 

v.  Jackson 

353 

v.  Jacobs 

197,  243,  677,  676 

v.  Jersey  City 

101, 109, 119, 217, 

219,220, 

'221,  228,  239,  241, 

247,  251, 

253,  255,  271,  273, 

286,  317, 

468,  541,  545,  577, 

606,  607,  609,  678 

V.  Johnson 

67, 180,  362 

v.  Jones    623 

652,  653,  660,  661 

v.  Judge 

631 

v.  Justices 

212 

v.  Keokuk 

455,  624,  653 

v.  Kirkley 

273,  367,  368, 620, 621,  724, 727 

v.  Kispert 

662 

y.  Kline 

177 

v.  Lafferty 

189,  344 

v.  Lean 

,    •               652 

v.  Ledford 

310 

V.  Lehre 

651,  669 

V.  Leovy 

78 

v.  Lieber 

322 

y.  Lingo 

219,  220 

v.  Laoinis 

631 

v.  Lyons 

672 

v.  Madison 

394 

v.  Marlow 

181,  183,  362,  667 

v.  Marston 

668 

v.  Mayberry 

211 

v.  Maynard 

186,350,351,352 

v.  Mayor 

65,-72,  73,  78, 

96,08,103,212,697 

y.  McAithur 

361 

v.  McCarry 

220 

v.  McCrillus 

623 

V;  McDowell 

320 

v.  Merrill 

332,  334 

v.  Merry 

100 

v.  Miller 

101 

v.  Milwaukee 

432,  638,  639, 

=    641, 

643,  652,  653,  658 

v.  Mitchell 

623,  625 

v.  Mobile 

99,  324,  504,  505 

y,  Morristown 

276 

v.  Moss 

357 

iii 


u 


TABLK    OF   CASES   CITED. 


Page. 


State  v.  Moultrieville 

292,  293 

v.  Mount 

640 

v.  Newark          93, 

241,  286,  572, 

587,  606, 

678,  691,  692 

v.  New  Brunswick 

109,570,589 

v.  New  Orleans 

390 

v.  North  et  al. 

562 

v.  Noyes 

18,  21,  64 

v.  Ohio 

627 

v.  Orange 

603 

v.  Perkins 

192,  352 

v.  Perth  Amboy 

605 

v.  Pinckney 

562 

v.  Pilot 

637 

v.  Plunkett 

306, 310 

v.  Pollard 

310 

v.  Portage 

565,  570,  587 

v.  Porter    - 

191 

v.  Putnam  Co. 

642 

v.  Rahway       182, 

630,  632,  633, 

650,  651 

v.  Railroad  Co. 

76,  298,  435, 

503,  504 

505,  649,  697 

v.  Ramos 

219,  633 

v.  Raymond 

697 

v.  Ricker 

360 

v.  Roberts 

301,  302,  578 

v.  Robinson 

626 

v.  Rush 

210 

v.  Saline  County 

410,  411 

v.  Schnierie 

184,  673 

v.  Scott 

64 

v.  Sellers 

211 

v.  Shelbyville 

212,  697 

v.  Shields 

212 

v.  Southern  Steamship  Co.   614 

v.  Springfield  Township         94 

v.  Stearns 

342,  353 

v.  Stewart 

458,  691,  693 

v.  St.  Louis  Co.  Court  '    72|  719 

v.  State  Auditor 

624 

v.  Supervisors 

628,  662 

v.  Swearingen 

108 

v.  Swift 

458,  691,  693 

v.  Tolan 

668,  673 

v.  Toomer 

192 

v.  Town  Council 

583 

585,  671,  672 

v.  Township 

212 

v.  Trustees 

42, 412, 151, 156, 158, 218, 220, 226 

v.  Tupper 

541 

v.  Turnpike  Co. 

665 

v.  Van  Home 

412 

v.  Van  Winkle 

267 

v.  Wakely        458,  460,  494,  495 

v.  Wapello  County                196 

v.  Warren 

623 

v.  Water  Commissioners      693 

v.  Whittingham 

697 

Page. 

State  v.  Wilkinson  503 

v.  Williams  237,  258 

v.Wilmington  181,186,352,626 

641 


65 

621 

431,  503 

679 

628 

55,  351,  360 


117 

62,  63 

172,  257 

667 

145,  146 

736 

122,  504,  506 


v.  Wilson 
v.  Winkelmeier 
v.  Wood  County 
v.  Woodward 
v.  Woody 
v.  Wootnowski 
v.  Young 

v.  Zanesville,  &c.  Co.  650 

Steam  Navigation  Co.  v.  Dandridge 

367,  377 
Steamship  Co.  v.  Joliffe 
Stebbins  v.  Jennings 

v.  Merritt 
Steele  v.  Martin 
Stein  v.  Mayor 
Sterrett  v.  Houston 
Stetson  v.  Faxon 

v.  Kempton 

40,  41,  42,  103,  135,  144,  373,  375,  705 

Stevens -v.  Chicago  348 

v.  Society  237,  263 

Stewart  v.  Mayor  361 

v.  New  Orleans    731,  732,  734 

v.  Polk  County  145 

v.  Southard  214,  215 

v.  State       >  196, 197,  336 

Stickney  v.  Salem  720 

Stilk  v.  Myrick  135 

Stillham  v.  Isham  114 

Stillwater  v.  Green  170 

Stockbridge  v.  West  Stockbridge     96 

Stocking  v.  State  198 

Stoddard  v.  Gilman  255,  274 

Stokes  v.  New  York  293,  329,  343 

Stone  v.  Boston  458,  693 

v.  Hugging  213 

Mayor  _       692,  694,  713,  715 


236,  237 

694 

501,  502 

761,  764 

135 

251 

126,  128 

208,  209 

366,  395 


v.  School  District 
Storm  v.  Odell 
Stormfeltz  v.  Turnpike  Co. 
Storrs  v.  Utica  391, 

Stotesbury  v.  Smith 
Stow  v.  Hise 
Stratton  v.  Allen 

v.  Oultou 
Strauss  v.  Insurance  Co. 

v.  Pontiac       272,  299,  300,  308 

Street  v.  County  Commissioners    636 

v.  Francis  690 

v.  Holyoke  754 

Street  Railroad  Co.  v.  City  Railway 

Co.  535 

v.  Cumminsville 

540,545,547,548 

v.  Smith  546 

Strieker  v.  Kelly  170,  255,  286 

Strickland  v,  Railroad  Co.  145 


TABLE   OP   CASKS   CITED. 


liii 


Page. 

Strong  v.  Darling  168 

Stroud  v.  Philadelphia     568,  607,  609 

Sturtevant  v.  Alton  173,  366,  36V 

v.  Liberty  394 

Stuyvesant  v.  New  York         110,  278 

Sumner  v.  First  Parish  705 

Sunbury,&c.  Railroad  Co.  v.  Cooper  274 

Sun  Insurance  Co.  v.  Mayor    557,  568 

Supervisors  v.  Bates  368 

v.  Briggs  708 

v.  Cofnnbury  193 

v.  Durant 

643,  646,  653,  662 
v.  Rogers  647 

v.  Schenck  383 

v.  Stimpson  210 

v.  United  States 

626,  641,  643,  644 

Surgi  v.  Snetchman  •  587 

Sussex  t.  Strader  551 

Sutton  v.  Board  of  Police        732,  747 

v.  Cole  163,  242,  430 

v.  Louisville  473 

Suydain  v.  Keys  213 

Swails  v.  State  96 

Swain  v.  Comstock  98 

Swan  v.  Cumberland  458 

v.  Williams  451 

Swann  v.  Buck  203 

v.  Cumberland      603,  691,  692 

Swartz  v.  Flatboats  118,  588 

v.  Page  436,  498 

Sweetzer  v.  Hay  193 

v.  Mead  371 

Swift  v.  Williamsburg        368,  391,  726 

Symmers  v.  Regem  222,  229 


Talbot  v.  Dent 

144 

v.  Hudson 

448,  450 

Talbott  v.  Grace 

124 

Taft  v.  Montague 

381 

v.  Pittsford 

367,  393,  395 

Tallman  v.  Janesville 

565 

v.  Marlberough  729 

Tanner  v.  Albion  319 

Tarver  v.  Commissioners  660 

Tash  v.  Adams  4<T,  141,  683 

Tate  v.  Railroad  Co.  511,  533,  535 

Tatem  v.  Wright  §62 

Taylor  v.  Americus  691 

v.  Board  of  Health  706 

v.  Boulware  167 

v.  Carondelet    273,294,298,435 

v.  Donner  577 

v.  Gloucester  226,  228 

v.  Griswold  276,  279,  282 

v.  Henry 

239,  258,  261,  263,  265,  268 


Page- 
Taylor  v.  Newberne  64, 145, 148 
v.  Palmer  241,286,572,586,612 
v.  Plymouth           712,  713,  715 
v.  Porter                 444,  445,  450 
v.  School  Commissioners    624 
v.  St.  Louis             225,  743,  745 
v.  Strong  189 
Teft  v.  Size                                      341 
Ten  Eyck  v.  Canal  Co.  74 
Tenney  v.  Lenz                         303,  304 
v.  Lumber  Co.                    172 
Terrett  v.  Sharon                              683 
v.  Taylor                         86,  418 
Terry  v.  Bank                                     87 
v.  New  York                           738 
Tesh  v.  Commonwealth                  350 
Thayer  V.  Boston 

122,  539,  724,  727,  728,  731,  735,  739 

Thicknesse  v.  Canal  Co.  152 

Thillate  v.  Stanley  445 

Thomas  v.  Ashland  58,  66,137,189,360 

v.  Commissioners  67 

v.  Dakin  62 

v.  Leland  90,  91 

v.  Mt.  Vernon     307,  347,  355 

v  Richmond       104,  129,  277, 

285,  367,  368,  375,  380,  395 

v.  White  193 

Thomson  v.  Carroll  277,  590 

v.  Floyd  559 

v.  Lee  Co. 

104,  145,  148,  158,  394,  412 
v.  Mayor  120,  122 

v.  Mount  Vernon  285 

v.  Nicholson  192 

v.  Pacific  Railroad  Co. 

55,561 

v.  People  676 

v.  Schermerhorn  109 

v.  Stickney  212,215 

Thorndike  v.  Boston  176 

Thornton  v.  Smith  360 

Thurston  v.  Hancock  745 

Tierney  v.  Dodge 

6i>,  101,  350,  356,  357,  361 
Tileson  v.  Newman  170 

Tines  v.  State  360 

Tinkham  v.  Tapscott  329 

Tinsman  v.  Railroad  Co.  72 

Tisdale  v.  Minock  346 

Tobacco  Co.  v.  Woodroffe.  346 

Tobey  v.  Wareham  236 

Todd  v.  Birdsall  210 

Tolland  v.  Willington  551 

Toll  Bridge  Co.  v.  Railroad' Co.  440 
Tompert  v.  Lithrow  182, 219, 226, 228 
Topping  v.  Gray  241 

Topsham  v.  Rogers  381 

Torry  v.  Milbury  41,  239 

Tottendell  v.  Glazby  345 


liv 


TABLE   OF   CASES    CITED. 


Page. 

Touchard  v.  Touchard 

83 

Tounier  v.  Municipality 

390 

Towles  v.  Justices 

551 

Towle  v.  State 

628 

Town  Council  v.  Burnett 

706 

v.  Court 

236 

v.  Harbers 

306 

Towns  v.  Tallahasse 

305 

Townsend  v.  Hoyle 

377,  451 

Township  v.  Carey 

214 

v  Linn 

214 

v.  Township 

703 

Township  Trustees  v.  State 

623 

Tracy  v.  Swartout 

215 

Trafton  v.  Alford 

209 

Treadwell  v.  Comm'rs   32,407,412,719 
v.  New  York  739 

Treat  v.  Middleton  621,  628 

Trippe  v.  Frazier  426 

Trptt  v.  Warren  381 

Trowbridge  v.  Mayor  122 

Troy  v.  Eailroad  Co.  552 

Truchelut  v.  City  Council 

93,  287,  346,  360 
True  v.  Melvin  649 

Trustees  Aberdeen  Academy  v. 

Aberdeen  80,90,94 

Trustees  v.  Bradbury  93,  94 

v.  Cherry       64,  369,  375,  410 

v.  Chicago  452,  587 

v.  Davenport  460 

v.  Erie  99,  274,  288 

v.  Hill  197,  243 

v.  Keeting  306 

v.  Leffler  342 

v.  McConnel        103,  585,  596 

v.  Osbourne  264,  577 

v.  Parks  61 

v.  Peaslee    160, 164,  428,  429 

v.  Reneau  164 

v.  Tatman  72,  75,  84 

v.  Winston  90 

Tucker  v.  Aikin  211,  238 

v.  Justices  223,  255 

v.  Rochester  729 

v.  Shorter  213  i 

v.  Virginia  City  138,  315 

Tufts  v.  Charlestown  606 

Tuley  v.  State  196 

Turner  v.  Dartmouth  771 

Turnpike  Co.  v.  Berry  551 

v.  McKeon         267, 268 

v.  Railroad  Co.  502 

Turpen  v.  County  Commissioners  203 

Tuttle  v.  State  336 

U 

Udall  v.  Truss  166 

TJnderhill  v.  Manchester  715 

v.  Smith     ■■  615 

v.  Trustees  394 


Underwood  v.  Carney  555 

Union  v.  Crawford    *  718 

Union  Pacific  Railroad  Co.  v.  Lin- 
coln County  561 
Union  Railway  Co.  v.  Cambridge  331 
Uniontown  v.  Commonwealth  .     629 
United  States  v.  Addison  208,  209,  635 
v.  Bank                      407 
v.  Barker                   210 
v.  Boice                    210 
V;  Bradley         191, 192 
v.  Bridge  Co.            446 
v.  Brown                   204 
v.  Chicago          447,  476 
v.  Dandridge             192 
v.  Duluth                   117 
v.  Fanning                 126 
v.  Fillebrown            263 
v.  Guthrie                 627 
V.  Hart                       505 
v.  Holly                     310 
v:  Hoar                      512 
v.  Keokuk          641,  646 
v.  Kilpatrick             512 
v.  Land  Commis- 
sioner               627 
v.  Le  Baron               191 . 
v.  Prescott                 212 
v.  Seaman                 627 
v.  Tingey                  191 
v.  Wright           199, 201 
University  of  Alabama  v.  Winston  79 
University  of  North  Carolina  v. 

Maultsby  79 

University  v.  Walden  204 

Updegraff  v.  Crans  241 

Updyke  v.  Campbell  319 

Upton  v.  Railroad  Co.  471 

v.  Starr  210 

Urmey's  Executor  v.  Wooden        428 
Utica  Insurance  Co.  v.  Scott  675 


Vanblaricum  v.  State  473 

Vance  v.  Bank  55,  96 

Vanderbilt  v.  Adams  136, 137,  330, 336 
Vandever  v.  Mattock  189 

Vandykre  v.  Cincinnati  317 

Van  Eppes  v.  Commissioners         719 
Van  Hoffman  v.  Quincy 

87, 158,  403,  579,  638,  641-,  643 
Van  Hostrup  v.  Madison  City 

106,  403,  408,  409 
Van  Keuren  v.  Johnson  .  210 

Van  Ness  v.  Washington  497 

Van  Orsdall  v.  Hazard  176,  200 

Vanover  v.  Davis  135 

v.  Justices  687 

Vansant  v.  Roberts  164 

Van  Sicklen  v.  Burlington        41, 137 


TABLE  OF  CASES  CITED. 


lv 


Page. 
Van  Swartow  v.  Commonwealth 

350,  357,  360 
Van  Wormer  v.  Mayor  315 


Varick  v.  Smith 
Vason  v.  Augusta 
Vassault  v.  Austin 
Veazie  v.  China 
v.  Mayo 
Veeder  v.  Lima 
Vernon  Soeiety  v.  Hills 
Verrior  v.  Sandwich 
Vick  v.  Vicksburg 


444,  448,  450 
111,  186,  312,356 
351 
144 
538 
148,  410,  411,  412 
196 
201 
479 


Vidal  v.  Girard's  Executors  418 

v.  Mayor  429 

Villis  v.  Legris  297 

Vinal  v.  Dorchester  749,  768 

Vincinnes  v.  Richards  743 

Vincennes  University  v.  Indiana 

55,  153, 154,  156 
Vincent  v.  Nantucket  40, 103, 141,  375 
Vintners  v.  Passey 

184,  198,  284,  344,  346 
Vionet  v.  Municipality  315 

Virginia  City  v.  Mining  Co.         65,  98 
Visitors  v.  State  79 

Vonphufv.  Hammer  65,67 

W 

Waddell  v.  New  York  743 

Waddington  v.  St.  Louis  117, 118 

Wade  v.  Richmond  167 

Wadleigh  v.  Gillman  136, 137,  276, 336 
v.  Sutton  382 

Wager  v.  Trov  Railroad  Co. 

"     509,  510,  534,  547,  548 

Waleot  v.  People  597 

Walcott  v.  Laurence  Co.  704 

v.  Swampscott  731,  735 

Waldo  v.  Wallace  186,  313,  351 

Waldraven  v.  Memphis  190,  205 

Waldron  v.  Lee  170 

Wales  v.  Muscatine  115 

Walker  v.  City  Council  678 

v.  Hallock  214 

v.  Railroad  Co.  460 

v.  St.  Louis  706 

v.  Swartout  212 

Walkley  v.  Muscatine 

620,  638,  642,  643 

Wallace  v.  Mayor  134 

v.  San  Jose  104, 132,  367 

v.  Shelton  565,  573 

Walling  v.  Mayor       457,  726,  727,  736 

Walsh  v.  Matthews  572 

Wammacks  v.  Holloway  179, 181,  362 

Wanstead  v.  Hill  318 

Ward  v.  Bartholomew  436 

v.  Hartford  Co.  114,  719 

v.  Louisville  715 


Page. 

Ward  v.  Maryland  561,  562,  579 

v.  Morris  562 

v.  State  561 

v.  Turnpike  Co.  717 

Waring  v.  Mobile  168 

Warner  v.  Mower  252 

v.  People  203,  205 

Warnock  v.  Lafayette  246 

Warren  v.  Charlestown  37,  63 

v.  Henly  557,  558,  567, 

570,  571,  601,  744 
v.  Lyons  City 

497,498,499,501,512 

v.  Mayor  347 

Warren  County  v.  State  625 

Wartman  v.  Philadelphia  322, 324, 327 

Warwick  v.  Mayo 

363,  460,  509,  511,  695 


Washington  v.  Frank 
v.  Harvard 
v.  Nashville 
v.  Mayor 
v.  State 
Waters  v.  Leech 
v.  People 
v.  State 
Watertown  v.  Cady 

v.  Cowen 
Watson  v.  Railroad^  Co. 

v.  South  Kingston 
Watts  v.  Carroll  Parish 

v.  Scott 
Waugh  v.  Leech 
Wayland  v.  County  Commission 

ers 
Wayne  County  v.  Benoit 
v.  Detroit 

313,  340,  341,  378 


337 
682,  708 
331 
570,  606 
563 
279,  333 
212 
212 
641 
504 
473 
451 
650 
345 
477 


447 
208 


Weaver  v.  Devendorf 

Webb  v.  Moler 

Webber  v.  Gray 

v:  Railroad  Co. 

Weber  v.  Lee  County 

v.  San  Francisco 
v.  Zimmerman 

Webster  v.  Chicago 

v.  Hawrington 

Weeks  v.  Foreman 


214,  692 
499 
213 
526 

641,  646 
689 

660,  661 

575 

18,  683 

339,  353,  360 


v.  Milwaukee  565,  567,  571, 
585,  587,  588, 590,  591,  745,  772 
Weet  v.  Brockport       83,  723,  757,  759 
Weightman  v.  Washington 

83,  718,  733,  756 

Wier  v.  Bush  196 

Welch  v.  Ste.  Genevieve  152, 154, 155, 

158,  159,  241,  243,  244,  647 

v.  People  35& 

v.  Stowell  319,  320,  321 

v.  Supervisors  627 

Weld  v.  Proprietors  717 


lvi 


TABLE   OF   CASES   CITED. 


Welker  v.  Potter           59, 

66,  586,  606 

"Wellcome  v.  Leeds 

538 

Wells  v.  Battelle 

257,  258 

v.  Burbank 

63 

v.  Burnbam 

384,  603 

v.  Weston 

558 

Wendell  v.  Brooklyn 

206 

Wertheimer  v.  Mayor 

363 

West  v.  Bancroft 

526,  527 

v.  Blake 

96,451 

v.  Greenville 

306 

Westchester  v.  Apple 

762,  767 

West  River  Bridge  Co.  v.  Dix 

140,  446,  448,  451,  482 
Westerhaven  v.  Olive  264 

Western  College  v.  Cleveland 

83,  710,  713,  715 
West.  Sav.  Fund  Society  v.  Phila- 
delphia 83,  86,  87,4)0,  110,  369, 

387,  722 

Weston  v.  Charleston  558,  561 

v.  Syracuse  131 

Wetmore  v.  Brooklyn  Gas  Co.  119, 120 

v.  Story  253,  254 

v.  Tracy  739 

Whalen  v.  LaCrosse  391 

Wharf  Case  (The)  117,  120 

Wheeler  v.  Chicago  379 

v.  Cincinnati       713,  714,  733 

v.  Railroad  Co.  595 

v.  Worcester  769 

Whicker  v.  Hume  417 

Whidden  v.  Drake  114 

White  v.  Charleston  714 

v.  City  Council  719 

v.  Flannigan  506,  507 

v.  Fuller  90, 93 

v.  Godfrey  509,  525 

v.  Kent  137,  189,  322 

v.  New  Orleans  334 

v.  Mayor         109,  208,  279,  280, 

281,  570,  602,  606 

v.  Phillipson  209,  731 

v.  Polk  County  206 

v.  Railroad  Co.  394 

v.  Tallman 

142,  185,  293,  297,  298 
v.  Washington  344 

v.  Yazoo  City         709,  711,  749 
Whiting  v.  Sheboygan  Railroad 

Company  145,  146 

Whitfield  v.  Longest         217,  299,  562 
Whitebouse  v.  Fellows  740 

Whiteside  v.  People  250,  251 

Whittier  v.  Varney  257 

Wiggin  v.  New  York  108 

Wilbrund  v.  Avenue  Railroad  Co.  546 
Wilcox  v.  Smith  211 

Wilde  v.  New  Orleans  728,  729 

Wilder  v.  Chicago  190 


Wildy  v.  Washburn 
Wiley  v.  Board 

v.  Parmer 
Wilkes  v.  Dinsman 
Wilkey  v.  Pekin 
Wilkinson  v.  Albany 


Page. 
690 
394 
561,  562 
-  214 
593 
315 
Willard  v.  Killingwbrth  104,  238,  283 
v.  Newburyport 

36,  41,  42,  103,  106,  148,  371 

Williams  v.  Augusta        276,  279,  336, 

341,  353,  360 

v.  Boardman  114 

v.  Cammack  570 

v.  Church  476,  477.  499 

v.  Clinton  753 

v.  Commissioners  649 

v.  County  Judge  623 

v.  Detroit  559,  569,  578,  589, 

597,  601,  602,  606,  685 

v.  Kenney  115 

v.  Kent  580 

v.  Lunenburg  237,  244 

v.  Railroad  Co. 

510,  534,  535,  548 
v.  School  District 

243,  258,  585,  706 
Williamson  v.  Commonwealth 

339,  340,  34J-,  354,  356,  359 
Willimantic  Society  v.  School 

Society  168 

Willis  v.  Booneville  360 

v.  Legris  142 

Wills  v.  County  Road  466 

Wilmington  v.  Roby         299,  559,  562 

Wilson  v.  Berkstresser  624 

v.  Commissioners  639 

v.  Goodman  213 

v.  Inloes  117, 120,  122 

v.  Marsh  Co.  451 

v.  Mayor        209,  709,  710,  743 

v.  New  York         111,  770,  772 

v.  School  District  32,  381 

Windham  v.  Portland  169, 171 

Winn  v.  Macon  93,  383 

Winona  v.  Huff         476,  479,  504,  508 

Winsboro  v.  Smart  326 

Winston  v.  Mosely  624,  633 

Wisby  v.  Boute  476, 477 

Wiswall  v.  Hill  120 

Withers  v.  Buckley  440 

Woelpper  v.  Philadelphia  328 

Wolcott  v.  Wolcott  249 

Wolfe  v.  Railroad  Co.       535,  536,  545 

Wood  v.  Bank  63,  97,  262,  268 

v.  Brooklyn  285 

v.  Lynn  375 

v.  Mears  553,  554,  765 

v.  Peake  690 

v.  Searl  337,  345 

v.  Waterville  378 


TABLE   OF   CASES    CITED. 


lvii 


Page. 

Wood  v.  Waud  769 

Woodbridge  v.  Detroit  570,  597 

Woodbury  v.  Hamilton  41 

Woodfolk  v.  Railroad  Co.  473 

Woodruff  v.  Neal  496,  501,  509 

v.  Parkham  561 

v.  Trapnall  87 

Woods  v.  Lawrence      _J  150,  409 

Woodson  v.  Skinner    '     435,  498,  501 

Woodstock  v.  Gallup     '  448,"458 

Woolrich  v.  Forrest  162 

Worcester  v.  Walker  188 

Work  v.  State  360 

Workingharu  v.  Johnson  284 

Worrell  v.  Munn  372 

Worsley  v.  Municipality  117,  707 

Worth  v.  Fayetteville  596,  687 

Wray  v.  Pittsburg  568 

Wrexford  v.  People  314,  317 

Wright  v.  Boston  608,  609,  705 

v.  Chicago  578 

v.  Defrees  274 

v.  Fawcett  659 

v.  Linn  428 

v.  Victoria  431 

Wyandotte  City  v.  Wood  66 


Wyncoop  v.  Society 
Wynne  v.  Wright 


Page. 

134 

305,  562 


Yarmouth  (Borough  of)  61 

Yarmouth  v.  North  Yarmouth  72,  94 
Yates  v.  Milwaukee 

119,  120,  123,  318,  322,  329,  330 
Yeatman  v.  Crandell  573,  587 

York  v.  Forscht  134,  310 

Young  v.  Bank  96 

v.  Buckingham v  232,  248 

v.  Commissioners 

213,  716,  718,  719 

v.  Yarmouth  531,  768 


Z 


Zabriskie  v.  Railroad  Co. 

64,145,321,537,540 
Zanesville  v.  Richards  564,  591 

Ziques  v.  Bujac  511 

Zottman  v.  San  Francisco        369,  382 
Zylstra  v.  Charleston        290,  291,  293, 
310,  314,  354,  360,  361,  695 


MUNICIPAL  CORPORATIONS. 


CHAPTER  I. 

Municipal  Institutions. —  Introductory  Historical  View. 

§  1.  It  does  not  fall  within  the  scope  of  the  present 
treatise  to  give  a  detailed  account  of  the  origin  and  rise  of 
cities  and  towns,  nor  to  trace  minutely  the  history  of  the 
rights,  powers,  and  jurisdiction  with  which  they  are  now 
generally  invested.  Such  an  inquiry  more  appropriately  be- 
longs to  the  legal  antiquary  or  to  the  historian;  and  yet  a 
brief  historical  survey  of  the  rise  and  progress  of  municipali- 
ties is  essential  to  an  intelligent  understanding,  even  its  prac- 
tical bearings,  of  the  subject  of  which  it  is  proposed  to  treat. 
The  origin  of  towns  and  cities,  and  the  exercise  by  them,  to  a 
greater  or  less  extent,  of  local  jurisdiction,  may  be  ascribed  to 
a  very  early  period. 

Phoenicia  and  Egypt  were  long  noted  for  their  large  and 
splendid  cities.  In  the  latter  country,  we  find  Memphis,  one 
of  the  old  world's  proudest  capitals,  whose  location,  even, 
was,  until  late  in  our  own  day,  a  matter  of  learned  conjec- 
ture and  speculation.  It  was,  centuries  ago,  buried  beneath 
the  floods  of  the  encroaching  desert,  and  in  our  own  day  it 
has  been  exhumed  in  the  presence  of  Bedouins  too  wild  to  be 
interested  in  the  wondrous  revelations  of  its  entombed  mys- 
teries. Temples  and  buildings,  vast  and  magnificent,  dating, 
probably,  fifteen  centuries  before  the  Christian  era,  and  pre- 
served by  burial,  both  from  decay  and  spoliation,  may  to-day 
be  seen  almost  in  their  original  perfection.  There,  too,  in 
"  old,  hushed  Egypt  and  its  sands,"  on  the  banks  of  the  Nile, 
are  the  massive  ruins  of  Thebes  (Diospolis),  the  city  of  "  the 
1 


2  MUNICIPAL    CORPORATIONS.  [CII,    I. 

hundred  gates,"  ante-dating  secular  history,  and  claimed  by 
the  Egyptians  to  have  been  the  first  capital,  as  it  undoubtedly 
was  one  of  the  oldest  cities,  of  the  world.  As  the  eye  runs 
along  the  colonnades  of  ruined  temples,  the  mind  runs  back 
through  the  Egypt  of  the  Ptolemies  to  the  Egypt  of  the  Pha- 
raohs, four  thousand  years  ago,  when  Thebes  was  in  its 
splendor  and  its  pride.  But  in  the  midst  of  these  stupendous 
remains  of  this  early  civilization,  we  find  no  evidence  of  their 
municipal  history  and  organization.  The  chief  lesson  they 
teach  is,  that  they  were  the  centres  of  great  wealth  and  power 
in  the  governing  class,  and  that  the  people,  who  constitute  the 
true  wealth  of  modern  cities,  were  at  the  absolute  disposal  of 
their  masters,  bound  down  and  degraded  by  servitude. 

§  2.  Notwithstanding  the  people  of  Greece  were  of  a" 
common  blood,  language,  and  religion,  Greece  was  never 
politically  united.  Political  power  resided  not  in  a  number 
of  independent  states,  but  in  a  large  number  of  free  and  in- 
dependent cities,  with  districts  of  country  adjoining  or  at- 
tached to  them.  Each  city,  except  in  Attica,  was  sovereign 
— was  the  sole  source  of  supreme  authority — and  possessed 
the  exclusive  management  and  control  of  its  own  affairs. 
The  citizen  of  one  was  a  foreigner  in  the  others,  and  could 
not,  without  permission  or  grant,  acquire  property,  make 
contracts,  or  marry  out  of  his  own  city.  The  Grecian  heart 
always  glowed  with  patriotic  fervor  for  the  city,  but  rarely, 
except  in  times  of  great  common  danger,  kindled  with  a  love 
for  the  whole  country.  And  although,  according  to  Chan- 
cellor Kent,1  the  "civil  and  political  institutions  of  some  of 
the  states  of  Greece  bear  some  analogy  to  the  counties,  cities, 
and  towns  in  our  American  states,"  yet  the  analogy,  it  must 
be  confessed,  is  both  remote  and  uncertain,  and  without  prac- 
tical value  in  the  inquiries  we  are  to  prosecute. 

§  3.  Municipal  as  well  as  private  corporations  were  fa- 
miliar to  the  Roman  Law.  "  To  conceive,"  says  a  modern 
writer,  "  of  ancient  Rome  as  the  capital  of  Italy  in  the  same 
sense  that  London  is  the   capital   of  England,  or  Paris   of 

1  2  Kent  Com.  268,  note. 


CH.  I.]  INTRODUCTORY   HISTORICAL   VIEW.  3 

France,  would  be  a  great  mistake.  London  and  Paris  are  the 
chief  cities  of  their  respective  countries,  because  they  are  the 
seat  of  government.  The  people  of  these  cities  and  their  sur- 
rounding districts  have  no  privileges  superior  to  those  of  other 
English  or  French  citizens.  But  the  city  of  ancient  Rome,  with 
her  surrounding  territory,  was  a  great  eorporate  body  or 
community,  holding  sovereignty  over  the  whole  of  Italy  and 
the  provinces."  None  but  persons  enrolled  on  the  lists  of  the 
tribes  had  a  vote  in  the  popular  assemblies  or  any  share  in  the 
government  or  legislation  of  the  city."1  The  common  division 
of  civic  communities  established  by  the  Roman  government 
was  three,  prefectures,  municipal  toums,  and  colonies.  The  pre- 
fectures did  not  enjoy  the  right  of  self-government,  but  were 
under  the  rule  of  prefects,  and  the  inhabitants  were  subjected 
to  the  burdens,  without  enjoying  any  of  the  privileges  of  Ro- 
man citizens.  But  with  the  municipal  towns  it  was  different. 
They  at  length  received  the  full  Roman  franchise,  "  and 
hence,"  says  the  learned  author  just  named,  "  arose  the  com- 
mon conception  of  a  municipal  town ;  that  is,  a  community  of 
which  the  citizens  are  members  of  tbe  whole  nation,  all  pos- 
sessing the  same  rights,  and  subject  to  the  same  burdens,  but 
retaining  the  administration  of  law  and  government  in  all  lo- 
cal matters  which  concern  not  the  nation  at  large," — a  descrip- 
tion which  answers  almost  perfectly  to  the  modern  notion  of 
municipal  organizations  in  England  and  America.  The  colo- 
nics, composed  of  Roman  citizens,  were  established  by  the 
parent  city,  sometimes  to  reward  public  services,  but  generally 
as  a  means  of  securing  and  holding  the  country  which  had 
been  subdued  by  Roman  arms.  The  constitution  of  these  col- 
onies, and  the  rights  of  the  citizens  and  communities  compos- 
ing them,  varied,  but  it  is  not  necessary  for  our  purpose  to 
trace  these  differences.  The  colonies  were  obliged  to  pro- 
vide for  the  erection  of  a  city,  and  cities  thus  erected  were 
called  muriK-ipia.  We  thus  perceive  the  justness  of  the  obser- 
vations of  a  distinguished  modern  historian  and  statesman, 
who  says  that  "  the  history  of  the  conquest  of  the  world  by 
Rome  is  the  history  of  the  conquest  and  foundation  of  a  vast 
number  of  cities.     In  the  Roman  world  in  Europe  there  was 

1  Dr.  Liddell,  Rome,  Chap.  XXVII.  sec.  8. 


4  MUNICIPAL   CORPORATIONS.  [CH.    I. 

an  almost  exclusive  preponderance  of  cities  and  an  absence  of 
country  populations,  and  dwellings."  l  The  nation  was  a  vast 
congeries  of  municipalities  bound  together  by  the  central 
power  of  Rome. 

When,  the  Romans  colonized  and  settled  the  countries 
which  they  conquered  they  established  fixed  governments  and 
carried  with  them,  and  to  a  greater  or  less  extent  necessarily 
imparted,  their  arts,  sciences,  language,  and  civilization  to  their 
new  subjects.  And  although  the  political  condition  of  the  van- 
quished people  was  far  from  being  desirable,  still  the  imme- 
diate residence  among  them  of  the  highly  cultivated  Roman 
could  not  fail  to  produce  effects  more  or  less  beneficial ;  and 
thus  the  municipia,  securing  what  the  Roman  arms  had 
achieved,  became  the  efficient  means  of  spreading  civilization 
throughout  the  Roman  world. 

§  4.  After  the  subversion  of  the  Roman  Empire  the 
towns  of  Europe  from  the  fifth  to  the  tenth  century  were  in  a 
state  neither  of  servitude  nor  liberty,  though  their  condition 
differed  greatly  in  different  countries.  During  this  period  the 
power  and  influence  of  the  towns  were,  in  general,  on  the 
decline.  The  power  of  the  church  was  great,  and  the  inhabi- 
tants found  their  chief  protection  in  the  clergy. 

The  establishment  of  the  feudal  system  worked  a  great 

1  M.  Guizot's  Hist.  Civilization  in  Europe,  Lect.  II :  "  Rome,  in  its  origin, 
was  a  mere  municipality,  a  corporation.  In  Italy,  around  Rome,  we  find 
nothing  but  cities  —  no  country  places,  no  villages.  The  country  was  culti- 
vated, but  not  peopled.  The  proprietors  dwelt  in  cities.  If  we  follow  the 
history  of  Rome,  we  find  that  she  founded  or  conquered  a  host  of  cities.  It 
was  with  cities  that  she  fought,  it  was  with  cities  she  treated,  into  cities  she 
sent  colonies.  In  the  Gauls  and  Spain  we  meet  with  nothing  but  cities ;  the 
country  around  is  marsh  and  forest.  In  the  monuments  left  us  of  ancient 
Rome  we  find  great  roads  extending  from  city  to  city  ;  but  the  thousands  of 
little  by-paths  now  intersecting  every  part  of  the  country  were  unknown. 
Neither  do  we  find  traces  of  the  immense  number  of  churches,  castles, 
country  seats,  and  villages  which  were  spread  all  over  the  country  during 
the  middle  ages.  The  only  bequests  of  Rome  consist  of  vast  monuments 
impressed  with  a  municipal  character,  destined  for  a  numerous  population, 
crowded  into  a  single  spot.  A  municipal  corporation  like  Rome  might  be 
able  to  conquer  the  world,  but  it  was  a  much  more  difficult  task  to  mould 
it  into  one  compact  body."  76.  See  also  2  Kent  Com.  270,  note  ;  Dr. 
Adam  Smith's  interesting  chapter.    Wealth  of  Nations,  Book  III.  Chap.  II. 


CH.  I.]  INTRODUCTORY   HISTORICAL   VIEW.  5 

change  in  the  condition  of  the  towns.  Before  that,  towns, 
as  we  have  seen,  were  the  centers  of  wealth  and  population. 
The  ruling  class  lived  within  them.  The  land  was  cultivated 
by  persons  who  were  not  recognized  as  having  any  political 
rights.  After  feudalism  was  established,  this  changed.  The 
proprietor  then  lived  upon  his  estates,  instead  of  living  within 
a  town ;  the  town  became  part  of  the  lands  of  the  lord,  or 
enclosed  within  his  fief.  It,  with  its  population,  became  thus 
subject  to  his  arbitrary  exactions,  oppression,  and  pillage. 
Still  the  towns  gradually  prospered,  and  with  prosperity  came 
wealth ;  with  wealth  came  influence  and  power.  Such,  in 
general,  was  the  condition  of  the  towns  of  continental  Europe 
down  to  the  eleventh  century.  About  this  time,  without  any 
union  or  concert,  many  of  them  in  most  of  the  countries  of 
Europe  rose  against  the  lords,  and  demanded  for  the  burgesses, 
commonalty,  or  inhabitants,  a  greater  or  less  measure  of 
enfranchisement.  Sometimes  a  town  failed  in  its  struggle, 
and  its  oppression  was  redoubled  by  the  victorious  lord. 
Sometimes  the  towns  were  aided  by  the  king,  who  was  fre- 
quently not  unwilling  to  humble  the  arrogant  and  haughty 
nobility  and  thereby  acquire  the  influence  and  affection  of 
those  whom  he  thus  assisted.  Not  unfrequently,  however,  the 
struggle  had  to  be  maintained  by  their  own  unaided  resources, 
and  when  successful,  the  result  was  the  granting  of  Charters, 
conferring  more  or  less  extensive  municipal  immunities  and 
rights,  by  the  lords  to  the  burghers.  *  These  charters,  as  Guizot 
justly  observes,  were  in  the  nature  of  "  treaties  Of  peace  between 
the  commons  and  their  lords ;"  were,  in  fact,  "  bills  of  rights  " 
for  the  people.1  During  the  twelfth  century,  "  all  Europe,  and 
especially  France,  which  for  a  century  had  been  covered  with 
insurrections,  by  burghers  against  their  lords,  was  covered  by 
charters  more  or  less  favorable  ;  the  corporators  enjoyed  them 
with  more  or  less  security,  but  still  they  enjoyed  them."2 

'  People  v.  Morris,  13  Wend.  325,  334,  per  Nehon,  J. 

2  Guizot's  Hist.  Civ.  in  Europe,  Lecture  VII.  This  philosophic  and  valu- 
able work  is  the  source  from  whence  are  drawn  most  of  the  statements  of 
the  text  as  to  the  condition  of  the  towns  of  Europe  from  the  fifth  to  the 
tenth  century.  See  similar  account,  Wealth  of  Nations,  Book  III.  Chap. 
III. ;  Hallam's  Middle  Ages,  Chap.  II.  part  II.,  and  notes  to  later  editions. 


6  .      MUNICIPAL   CORPORATIONS.  [CH.    I. 

§  5.  After  the  overthrow  of  the  Roman  Empire  and  the 
civilization  which  accompanied  the  Roman  power,  Europe 
became  indebted  to  cities  and  to  the  authority  which  they  ac- 
quired, and  the  jurisdiction  which  they  exercised  for  the  crea- 
tion of  the  third  estate  —  popular  power  —  and  for  the  devel- 
opment of  the  principles  of  constitutional  or  free  government.1 

The  Italian  cities,  especially  Venice,  Genoa,  and  Pisa,  grew 
rich  from  the  commerce  resulting  from  the  vast  armies  which 
the  Crusaders  for  two  hundred  years  had  successively  pushed 
forward  into  the  Holy  Land.  The  oppressive  feudal  system 
was  at  this  time  in  full  force  throughout  Europe.  These 
Italian  cities  used  their  power  and  wealth  to  secure  their  inde- 
pendence. Cities  and  towns,  as  well  as  people  who  dwelt  in 
the  country,  were  alike  subject  to  the  arbitrary  and  oppressive 
exactions  of  their  feudal  masters.  Some  of  the  cities  in  the 
eleventh  century  obtained  their  freedom  by  purchase,  and 
some  by  force,  and  some  by  gift.  They  were,  in  effect,  con- 
stituted so  many  little  republics,  with  the  right  to  manage  their 
own  concerns.  In  this  way,  before  the  conclusion  of  the  thir- 
teenth century,  nearly  every  considerable  city  of  Italy  was 
enfranchised  or  had  received  extensive  corporate  immunities 
from  the  sovereign  or  lord.  The  happy  effects  were  soon  per- 
ceived in  the  increased  population  and  prosperity. 

§  6.  Whether  from  example,  as  asserted  by  Dr.  Robert- 
son, or  from  other  causes*  the  came  course  was  adopted  by  the 
cities  of  the  other  states  of  Europe.  The  king  of  France, 
Louis  le  G-ros,  and  his  great  barons,  granted  many  charters  of 
community,  by  which  the  inhabitants  were  freed  from  feudal 
servitude  and  erected  into  municipal  corporations,  with  the 
power  of  local  self  government.    These  charters  contained  grants 

1  "  The  institution  of  cities  into  communities,  corporations,  or  bodies 
politic,  and  granting  them  the  privilege  of  municipal  jurisdiction,  contrib- 
uted more,  perhaps,  than  any  other  cause,  to  introduce  regular  government, 
police,  and  arts,  and  to  diffuse  them  over  Europe."  Robertson's  Charles 
V. ;  See  Hallain's  Middle  Ages,  Chap.  II.  part  II.  M.  Guizot  considers  the 
three  great  elements  of  modern  civilization  to  be  the  Feudal  System,  the 
Christian  Church,  the  Commons,  or  free  corporate  cities  ;  Civ.  in  Europe, 
Lecture  VII. ;  see  also  Wealth  of  Nations,  Book  III.  Chap.  III.,  on  "  The 
Rise  and  Progress  of  Cities  and  Towns,  after  the  Fall  of  the  Roman  Empire." 


CH.  I. J  INTRODUCTORY   HISTORICAL   VIEW.  7 

of  new  privileges,  and  prescribed  salutary  methods  for  the 
enforcement  of  rights  and  the  redress  of  grievances.  They 
are  both  interesting  and  instructive,  and  a  brief  view  of  their 
character  is  given  in  the  note.1 

We  meet,  in  France,  with  great  diversity  in  the  origin  and 
government  of  towns  and  cities.  In  some  of  them,  especially 
in  southern  France,  the  Roman  municipal  system,  more  or 
less  modified  from  time  to  time,  was  perpetuated.  The  Ro- 
man system  was  formed  upon  an  aristocratic  model.  In  each 
munitipium  there  was  a  senate,  called  an  ordo  or  curia.  This 
was,  politically  considered,  the  city;  it  was  the  governing 
body.  The  mass  of  the  population,  except  in  a  few  cases, 
had  no  voice  in  municipal  affairs.  This  senate  was  composed 
of  a  comparatively  small  number  of  families,  and  the  office 
was   hereditary.     "When   it  became   thinned   or   reduced  by 

1  In  those  turbulent  times  persona?  safety  was  an  object  of  the  first  impor- 
tance, and  this  was  usually  afforded  to  the  vassal  by  the  baron  or  lord.  The 
communities  or  free  towns  which  were  instituted,  undertook  to  provide  for 
the  safety  of  their  members,  independent  of  the  nobles.    For,  1.  All  the 
members  were  bound  by  oath  to  assist  and  defend  each  other  against  all 
aggressors.    2.  All  residents  in  a  town  made  free,  were  obliged  to  take  part 
in  the  mutual  defence  of  its  members.    3.  The  communities  could  execute 
the  judgements  of  their  magistrates  by  coercion,  if  necessary.    4.  The  prac- 
tice of  making  private  satisfaction  for  crimes  was  abolished,  and  provision 
made  fpr  the  regular  punishment  of  offenders.    5.  A  person  reasonably  sus- 
pected to  be  about  to  injure  another,  might,  as  with  us  at  the  present  day, 
be  compelled  to  give  security  to  keep  the  peace.    These  communities  also 
undertook  to  provide  for  the  security  of  property  by  the  following :  1.  Abol- 
ishing the  right  of  the  creditor  to  seize  the  effects  of  his  debtor  with  his 
own  hand  and  by  his  private  authority,  and  compelling  him  to  proceed 
before  a  magistrate,  who  was  authorized  to  issue  the  necessary  process  for 
the  seizure  and  sale  of  property,  humane  and  necessary  exemptions  being 
allowed.    2.    Every  member  was    obliged  to  bring  some  of  his  property 
into  the  town,  or  build  a  house,  or  buy  land  ;  and  in  some  places  the  mem- 
bers were  bound  for  each  other.    3.  Judgments  by  magistrates  duly  selected, 
took  the  place  of  the  arbitrary  and  capricious  decisions  of  the  baron  or 
feudal  lord.    4.  Arbitrary  taxation  was  prohibited,  and  regulations  for  an 
equal  tax  were  sometimes  especially  prescribed.     Digested  from  Robert- 
son's Charles  V.,  Vol.  I.  note  XVI.  Proofs  and  Illustrations.   "  The  commu- 
nities of  France  never  aspired,"  says  this  accurate  and  elegant  historian, 
"  to  the  same  independence  with  those  in  Italy.    They  acquired  in  France 
new  privileges  and  immunities,  but  the  right  of  sovereignty  remained 
entire  to  the  king  or  baron  within  whose  territories  the  respective  cities 
were  situated,  and  from  whom  they  received  the  charter  of  their  freedom." 
lb. 


8  MUNICIPAL   CORPORATIONS.  [CH.    I. 

death  or  otherwise,  it  was  not  filled  by  the  people,  the  mass 
of  the  population,  but  by  the  survivors.  Other  towns  or  com- 
munities originated,  in  the  most  natural  manner,  upon  the 
fiefs  or  estates  of  the  feudal  proprietors.  Many  of  these 
estates  became  centres  or  agglomerations  of  population  com- 
posed of  the  working  and  industrial  classes.  Trade  sprung 
up,  and  towns  and  cities  originated.  The  lord,  or  proprietor, 
was  interested  in,  and  derived  profit  from,  their  prosperity. 
To  induce  others  to  settle  there,  he  often  conceded  certain 
privileges.  He  did  not  emancipate  them  from  all  feudal 
restraints  or  domination,  but  mitigated  these.  Often  he 
granted  lands  and  privileges  to  all  who  settled  in  towns  on 
his  domains,  on  receiving  a  moderate  fixed  rent  and  certain 
specific  military  services.  These  concessions  had  no  higher 
origin  than  the  personal  interest  of  the  proprietor,  and  were 
often  violated.  They  .did  not  constitute  the  towns  locally 
independent,  or  make  them  true  corporations.  But  limited 
and  uncertain  as  these  concessions  were,  the  towns  which 
received  them  prospered  and  became  more  or  less  important. 
Other  places  were  chartered  towns  and  true  corporations. 
In  the  twelfth  century  there  was  the  general  movement,  be- 
fore noticed,  on  the  part  of  the  towns  of  France,  for  their 
enfranchisement,  or  delivery  from  feudal  bondage.  The  ex- 
tent of  this  movement  may  be  judged  from  the  fact  that  the 
royal  charters  of  this  period  are  numbered  by  hundreds,  and 
those  granted  by  the  lords,  by  thousands.  These  were,  in 
general,  wrested  from  the  feudal  proprietors  by  force,  or  the 
fear  of  it,  and  conferred  an  almost  independent  political  exist- 
ence upon  the  commune,  or  town.  These  charters  gave  the 
community  the  power  of  having  its  people  judged  for  offences 
by  magistrates  of  their  own  choosing;  crimes  and  punish- 
ments were  defined;  arbitrary  rents  and  taxes  abolished,  and 
fixed  rents  and  regular  taxes  substituted ;  main-morte  and  other 
restraints  upon  the  alienation  and  enjoyment  of  property  were 
removed.  The  government  of  towns  thus  created,  unlike 
those  which  were  mere  perpetuations  of  the  Roman  system, 
was  formed  upon  a  democratic  model.  A  voice  was  given  to 
all  burghers,  or  persons  of  a  certain  fortune,  or  who  exercised 
a  trade  or  calling.     In  a  word,  with  considerable  diversity, 


CH.  I.]  INTRODUCTORY   HISTORICAL   VIEW.  9 

this  class  of  towns  was  independent,  and  possessed  the  power 
of  self-government.  From  and  after  the  fourteenth  century, 
the  political  power  and  influence  of  the  towns  of  France  de- 
cayed. The  causes  of  this  decline  have  been  traced,  with  a 
masterly  hand,  by  M.  G-uizot,  but  they  do  not  relate  to  our 
purpose.1  In  the  course  of  .change,  we  may  remark,  that  the 
royal  power  over  them  became  predominant,  and  instead  of 
being  self-governed,  they  were,  and  are,  administered  by  the 
ntendants,  or  officers  of  the  king  or  emperor,  or  central 
authority  at  Paris. 

Towns,  or  communes,  in  France  are  now  governed  by  a 
mayor  and  council.  By  the  law  of  1855,  in  all  communes  of 
3,000  inhabitants  and  upwards  these  officers  are  appointed  by 
the  emperor;  while  in  smaller  communes  the  appointment  is 
made  by  the  prefect  of  the  department,  himself  appointed  by 
the  emperor.  The  prefect  may  suspend  municipal  council- 
lors, but  the  emperor  alone  can  dismiss  them.2 

§  7.  It  seems  to  be  well  established,  that  the  towns  and 
cities  of  Spain  acquired  charters  of  freedom  at  an  earlier  pe- 
riod than  towns  in  France,  England,  or  Germany.3  The 
cities  of  Italy,  as  we  have  seen,  owed,  to  a  large  extent,  their 

1  History  Civilization  in  France,  Lect.  XIX. ;  Hallain's  Middle  Ages,  Chap. 
II.  part  II.  and  notes. 

2  American  Encyclopedia,  Commune. 

3  The  most  ancient  of  these  regular  charters  of  incorporation  now  extant 
was  granted  by  Alfonso  V.  in  1020,  to  the  city  of  Leon  and  its  territory.  It 
preceded,  by  a  long  interval,  those  granted  to  the  burgesses  in  other  parts 
of  Europe,  with  the  exception,  perhaps,  of  Italy.  Acts  of  enfranchisement 
became  frequent  in  Spain  during  the  eleventh  century,  several  of  which 
are  preserved,  and  exhibit  with  sufficient  precision  the  nature  of  the  priv- 
ileges accorded  to  the  inhabitants.  Robertson  (in  his  History  of  Charles 
V.  Introductory  View),  who  wrote  when  the  constitutional  antiquities  of 
Castile  had  been  but  slightly  investigated,  would  seem  to  have  little  author- 
ity, therefore,  for  deriving  the  establishment  of  communities  from  Italy, 
and  still  less  for  tracing  their  progress  through  France  and  Germany  to 
Spain.     Prescott's  Ferdinand  and  Isabella,  Introduction,  Vol.  I.  note  24. 

Hallam,  who,  as  well  as  Prescott,  founds  his  judgment  upon  the  historical 
works  of  Marina  and  Sempere,  expresses  a  similar  opinion  as  to  the  early 
period  at  which  the  towns  of  Spain  were  invested  with  chartered  rights 
and  privileges.    Middle  Ages,  Chap.  IV. ;  lb.  Chap.  II.  part  II.  and  notes. 

2 


.     10  MUNICIPAL   CORPORATIONS.  [CH.    I. 

freedom  to  their  commercial  importance  and  wealth;  but 
those  of  Spain  owed  their  privileges  and  jurisdiction  to  an  en- 
tirely different  cause.  For  nearly  eight  hundred  years  the 
Gothic  inhabitants  of  Spain  had  been  engaged  in  an  almost 
perpetual  struggle  against  the  Moors  or  Arabs  who  occupied 
the  southern  part  of  the  peninsula.1  It  was  obviously  the  dic- 
tate of  policy,  as  the  Spaniards  gradually  narrowed  the  bound- 
aries '  of  their  enemies'  territory,  to  make  provision  for 
securing  and  holding  the  ground  thus  gained.  With  this 
view,  and  for  the  purpose  of  protecting  themselves  from  the 
frequent  raids  of  their  Arab  neighbors,  liberal  charters  were 
granted  to  towns,  with  extensive  districts  of  country  subject 
to  their  municipal  jurisdiction. 

By  these  grants  or  charters  the  citizens  selected  their  own 
officers,  including  judges  and  a  common  council,  and  enjoyed 
all  the  essential  rights  of  freemen.  In  return,  the  community 
or  city  paid  a  certain  (no  longer  an  arbitrary)  tax  or  rent,  and 
owed  military  service.  For  more  effectual  protection,  the 
charters  frequently  prohibited  the  nobles  from  acquiring  real 
property  or  erecting  fortresses  or  palaces  within  the  limits  of 
the  community,  and  subjected  them  to  its  jurisdiction  when 

/ 

**  Mr.  Irving's  fine  reflections,  in  his  Alhambra,  upon  this  protracted  and 
famous  contest  between  the  Crescent  and  the  Cross,  are  not  inappropriate : 
"  The  singular  fortunes  of  the  Arabian  or  Morisco-Spaniards,  form  one  of 
the  most  anomalous  yet  splendid  episodes  in  history.  A  remote  wave  of 
the  great  Arabian  inundation,  cast  upon  the  shores  of  Europe,  they  seem 
to  have  all  the  impetus  of  the  first  rush  of  the  torrent.  But  repelled  (by 
unsuccessful  battle)  within  the  limits  of  the  Pyrenees,  they  gave  up  the 
Moslem  principle  of  conquest,  and  sought  to  establish  in  Spain  a  peaceful 
and  permanent  dominion.  Generation  after  generation,  century  after  cen- 
tury passed  away,  and  still  they  maintained  possession  of  the  land.  With 
all  this,  however,  the  Moslem  empire  in  Spain  was  but  a  brilliant  exotic 
that  took  no  permanent  root  in  the  soil  it  embellished.  Severed  from  all 
their  neighbors  in  the  west  by  impassable  barriers  of  faith  and  manners, 
and  separated  by  seas  and  deserts  from  their  kindred  of  the  east,  the  Mo- 
risco-Spaniards were  an  isolated  people.  Their  whole  existence  was  a 
prolonged,  though  gallant  and  chivalric,  struggle  for  a  foothold  in  a 
usurped  land.  They  were  the  outposts  and  frontiers  of  Islamism.  The 
peninsula  was  the  great  battle  ground  where  the  Gothic  conquerors  of  the 
north  and  the  Moslem  conquerors  of  the  east  met  and  strove  for  mastery  ; 
and  the  fiery  courage  of  the  Arab  was  at  length  (after  800  years)  subdued 
by  the  obstinate  and  persevering  valor  of  the  Goth." 


CH.  I. J  INTRODUCTORY   HISTORICAL   VIEW.  11 

within  its  territory.  Large  portions  of  the  adjacent  country, 
as  we  have  said,  often  embracing  towns  and  villages,  were  an- 
nexed to  the  city  or  community  and  placed  under  its  laws  and 
jurisdiction.  "  Thus,"  says  Mr.  Prescott,1  to  whose  researches 
we  are  chiefly  indebted  for  this  sketch  of  the  early  municipal- 
ities of  Spain,  "  while  the  inhabitants  of  the  great  towns  in 
other  parts  of  Europe  were  languishing  in  feudal  servitude, 
the  members  of  the  Castilian  corporations,  living  under  the 
protection  of  their  own  laws  and  magistrates  in  time  of  peace, 
and  commanded  by  their  own  officers  in  war,  were  in  full  en- 
joyment of  all  the  essential  rights  and  privileges  of  freemen." 

§  8.  Britain  was  one  of  the  last  conquests  of  the  Csesars,  and 
was  one  of  the  first  of  the  western  provinces  upon  which  they  re- 
leased their  hold.  The  Latin  language  did  not  become  the 
language  of  the  people  ;  nor  did  the  Romans,  as  in  many  of 
the  continental  provinces,  fill  the  country  with  memorials  of 
their  skill  and  arts.  The  impressions  made  by  the  mastery  of 
the  Roman  were  not  destined  to  be  permanent.  According 
fo  an  accurate  explorer  and  philosophic  modern  historian,2 
Britain,  when  subject  to  Rome,  was  divided  into  thirty-three 
townships,  with  a  certain  share  of  local  self-government ;  and 
quasi  municipal  institutions,  for  a  long  time  after  the  with- 
drawal of  the  Roman  power,  constituted  whatever  of  govern- 
ment the  people  possessed.  At  the  time  of  the  conquest  of 
England  by  William  of  Normandy  (A.  D.  1066),  the  towns  and 
boroughs  were  dependent  Upon  the  uncertain  protection  of  the 
king  or  lord,  to.  whom  they  owed  rents  or  service,  and  were 
liable  to  discretionary,  that  is,  arbitrary,  rates  or  talliages. 
They  were  not  incorporated,  did  not  constitute  bodies  politic ; 
and  being'  composed  mainly  of  tradesmen  and  the  lower 
classes,  were  regarded  by  their  feudal  masters  as  possessed  of 
no  political  and  of  but  few  civil  rights.  None  of  them  enjoyed 
the  right  of  representation  in  the  council  of  the  nation,  and, 
with  the  exception,  perhaps,  of  London  and  a  few  of  the  great- 
er towns,  did  not  possess  the  right  of  internal  or  self-govern- 

1  History  Ferdinand  and  Isabella,  Vol.  I.  Introduction,  sec.  1. 
'  Sir  James  Mackintosh's  History  of  England,  Vol.  I.  p.  30. 


12  MUNICIPAL    CORPORATIONS.  [CH.    I. 

ment.  Some  time  between  1100  and  1125  Henry  I.  granted  to 
London  the  original  charter  >  in  which  was  conferred  many 
valuable  municipal  privileges,  with  the  right,  among  others, 
to  choose  certain  of  their  own  officers,  such  as  sheriff,  justice, 
and  the  like.1.  But  the  right  of  local  self-government  was  not, 
in  general,  conferred  upon  towns  and  boroughs  until  the  time 
of  John,  who  reigned  from  1199  to  1216.2  Meantime  the 
towns  and  cities  continued  to  grow  in  population  and  wealth, 
and  as  these  increased,  their  disposition  to  submit  to  arbitrary 
exactions  proportionately  diminished,  and  their  independent 
spirit  and  desire  for  freedom  from  oppressive  restraints  became 
more  manifest ;  but  still  they  did  not  acquire  sufficient  influ- 
ence or  importance  to  be  allowed  a  representation  in  the  states 
of  the  kingdom  for  more  than  two  centuries  after  the  con- 
quest. It  was  not  until  the  time  of  Edward  the  First  that 
cities  and  boroughs,  then  mostly  incorporated,  obtained  the 
right  of  returning  members  to  parliament.  The  legislative 
power  of  the  kingdom  was  at  this  time  vested  in  the  king  and 
the  council,  afterwards  called  the  parliament.  This  council 
Was  constituted  of  the  spirittial  and  lay  peerage.  The  com- 
monalty of  England  had  no  voice  or  part  in  the  legislature. 
This  wise  and  politic  prince  was  greatly  distressed  for  money, 
and  instead  of  attempting  to  raise  it  by  the  levy  of  arbitrary 
taxes  or  talliages,  which  were  submitted  to  with  murmurs  and 
yielded  sparingly,  preferred  to  obtain  it  by  the  prior  voluntary 
consent  of  the  cities,  towns,  and  boroughs.  He  hit  upon  this 
device.  He  caused  writs  to  be  issued  to  about  one  hundred 
and  twenty  cities  and  boroughs,  enjoining  them  to  send  to  par- 
liament, along  with  the  two  knights  of  the  shire,  two  deputies 
from,  each  borough  within  their  comity,  with  authority  from  their 

1  This  famous  charter  has  no  date.  Its  substance  is  given  in  Norton's 
Commentaries  on  the  History,  Constitution,  and  Chartered  Franchises  of 
the  City  of  London,  and  its  various  provisions  explained  and  commented 
on  ;  Book  II.  Chap.  II.  p.  337.  In  the  latter  clause  of  this  charter  is  an  allu- 
sion' to  the  very  ancient  custom  of  foreign  attachment,  in  which  is  to  be 
found  the  germ  of  all  our  foreign  attachment  laws.  Puling's  Laws,  &c,  of 
London,  188  ;  Hallam's  Middle  Ages,  Vol.  III.  Chap.  VIII.  part  III.  Mr. 
Norton  gives  the  substance  of  all  of  the  charters  of  London  from  the  time  of 
William  the  Conqueror  to  the  present. 

'  Hallam's  Middle  Ages,  Vol.  III.  Chap.  VIII. 


CH.  I.]  INTRODUCTORY   HISTORICAL   VIEW.  13 

respective  communities  to  consent  to  what  the  king  and  his 
council  should  require  of  them.  As  the  experiment  proved 
successful,  and  more  money  was  obtained,  and  with  less  trouble, 
than  in  the  former  way,  the  practice  was  continued.  And 
such,  according  to  the  best  opinions  of  learned  and  careful  in- 
quirers,1 is  the  origin  of  popular  representation,  and  of  the 
house  of  commons  itself,  the  latter  constituting,  as  Macaulay 
well  observes,  "  the  archetype  of  all  the  representative  assem- 
blies which  now  meet,  either  in  the  old  or  new  world." 2  And 
for  this  England  and  the  world  are,  in  a  great  measure,  indebt- 
ed, as  this  cursory  review  shows,  to  the  spirit  of  independence 
which  animated  the  towns  and  cities,  and  to  the  pecuniary 
wants  of  an  enterprising  and  ambitious  monarch. 

The  political  powers  thus  acquired  by  towns  gave  them 
political  importance.  This  power  was  courted  and  controlled 
by  the  crown.  The  king's  judges  decided  that  no  corporation 
was  valid  without  the  sanction  of  the  king,  and  most  of  the 
corporations  from  time  to  time  applied  to  the  crown  for  a  grant 
or  confirmation  of  their  privileges.  Their  dependence  upon 
the  crown  was  thus  established,  and  the  crown,  as  a  check  upon 
the  nobles,  encouraged  popular  elections  by  the  whole  corporate 
assembly?     In  the  course  of  time  it  was  found  that  these  repre- 

1  Hallam's  Middle  Ages,  Vol.  III.  Chap.  VIII. ;  Hume,  England,  Vol.  I. 
App.  II. ;  Dr.  Adam  Smith's  Wealth  of  Nations,  Book  III.  Chap.  III.,  whose 
account  of  the  condition  of  the  towns  and  boroughs  at  this  period,  and  the 
decay  of  the  power  of  the  lords  and  the  growth  of  the  power  of  the  inhab- 
itants of  the  cities  is,  though  brief,  perspicuous  and  satisfactory  ;  Norton's 
Com.  Lond.  109.  A  distinctive  feature  of  boroughs,  in  England,  is  the  right 
of  the  borough  to  elect  members  of  parliament.  There  the  term  borough 
includes  cities  as  well  as  villages,  but  in  the  United  States  the  term  borough 
is  not  in  very  general  use,  and,  when  used,  designates  an  incorporated  vil- 
lage or  town,  but  not  a  city  ;  American  Cyclopedia,  Vol.  III.  536,  Borough. 

2  History  England,  Vol.  I.  Chap.  I. :  "  The  crown  !  it  is  the  house  of  com- 
mons !  "  said  Mr.  Eoebuck,  in  1858  ;  and  the  recent  history  of  Great  Britain 
shows  that  against  the  declared  and  positive  determination  of  the  commons 
neither  the  crown  nor  the  lords,  in  any  struggle  relating  to  popular  rights, 
can  make  any  effectual  resistance.  And  so  a  close  observer  of  our  Ameri- 
can institutions  will  discover  that  both  the  senate  and  the  executive,  on 
contested  questions,  ultimately  yield  to  the  controlling  power  and  growing 
importance  of  the  house  of  representatives. 

3  An  English  Municipal  Corporation,  as  will  be  explained  hereafter,  con- 
sisted usually  of  one  or  more  select  or  definite  bodies,  and  an  indefinite 


14  MUNICIPAL    COKPOEATIONS.  [CH.    I. 

sentatives  were  more  formidable  to  the  power  of  the  crown 
that  the  nobility  had  been.  In  Elizabeth's  time  compliant 
judges  decided  that  although  the  right  of  election  was,  by  the 
original  constitution  or  charter,  in  the  whole  assembly,  still 
from  usage,  even  when  within  the  time  of  memory,  a  by-law 
may  be  presumed  giving  the  right  election  to  a  select  class 
(more  readily  controlled  by  the  crown)  instead  of  the  whole 
body.1 

Afterwards,  to  increase  the  power  of  the  crown,  James  in- 
corporated towns  or  boroughs,  endowing  them  with  the  parlia- 
mentary franchise,  but  confining  the  exercise  of  the  right  to 
vote  to  select  classes.  The  immense  power  of  popular  repre- 
sentation was  a  most  active  agency  in  the  overthrow  of 
Charles  I.,  and  the  temporary  subversion  of  the  throne.  This 
power  was  inimical  to  the  arbitrary  schemes  of  the  Protector, 
but  he  expelled  the  members  by  violence,  and  subdued  their 
authority  in  parliament  by  force.  He  then  secured  this  power 
in  his  own  favor  by  expelling  all  hostile  magistrates  and 
officers  and  supplanting  them  with  others  of  his  own  creation. 
'  On  the  restoration,  Charles  II.  commenced  his  reign  by  re- 
constructing the  corporations  and  filling  them  with  his  own 
creatures.  Judges,  also  creatures  of  the  king,  holding  com- 
missions during  his  pleasure,  aided  him  in  his  scheme  to 
acquire  absolute  control  over  all  of  the  corporations  of  the 
realm.  London,  as  the  largest  and  most  influential,  was 
selected  as  an  example,  and  in  1683  the  famous  quo  warranto 
was  issued  against  the  city  to  deprive  it  of  its  charter,  for  two 
alleged  violations,  one  of  which  was  stale,  and  both  frivolous. 
Judgment  passed,  of  course,  against  the  city,  and  its  ancient 
charter  was  abrogated.2  As  a  condition  of  its  restoration,  it 
was,  among  other  things,  provided  that  thereafter  the  mayor, 

body,  the  latter  being  generally  composed  of  the  burgesses  or  citizens ; 
and  a  Corporate  Assembly  was  a  meeting  of  all  the  bodies  and  not  of  the 
select  or  definite  bodies  alone. 

1  Willcock  on  Municipal  Corp.  8  ;  3  Hallam's  Const.  History,  52. 

2  Rex  v.  City  of  London,  Mich.  33  Car.  II ;  2  Show.  262  ;  Puling's  Laws, 
etc.  of  London,  14.  The  history  of  the  seizure  of  the  city  franchises,  by 
virtue  of  the  writ  of  quo  warranto  is  given  at  some  length  by  Norton,  Com. 
on  the  History,  etc.  of  London,  Book  I.  Chap.  XX. ;  see  also  The  Case  of  the 
City  of  London,  8  How.  State  Trials,  1340,  et  seq. 


CH.  I.]  INTRODUCTORY   HISTORICAL   VIEW.  15 

sheriff,  clerk,  etc.,  should  not  exercise  their  office  without  the 
king's  consent ;  and  that  if  the  king  twice  disapproved  of  the 
officers  elected  by  the  corporation,  he  might  himself  appoint 
others.  In  short,  the  city  was  deprived  of  the  right  of  elect- 
ing  its  own  officers,  and  made  dependent  upon  the  crown. 
And  such  was  the  fate  of  most  of  the  considerable  corpora- 
tions in  England.  The  whole  power  was  in  the  hands  of  the 
king. l 

Nor  were  these  arbitrary  proceedings  confined  to  Eng- 
land. In  1683  writs  of  quo  warranto  and  scire  facias  were  issued 
for  the  purpose  of  abrogating  the  charter  of  Massachusetts. 
Patriotism  and  religion  mingled  their  fervors  and  combined  in 
its  defence,  but  in  vain.  Servile  judges,  in  June,  1684,  one 
year  and  six  days  after  judgment  against  the  city  of  London, 
adjudged  the  charter  to  be  conditionally  forfeited ;  and  the 
charter  government  was  displaced,  and  popular  representation 
superseded  by  an  arbitrary  commission.  In  1687,  similar  writs 
wers  issued  against  the  charters  of  Rhode  Island  and  Connecti- 
cut ;  when,  as  is  well  known,  the  people  of  the  latter  colony  un- 
successfully endeavored  to  preserve  this  cherished  muniment  of 
their  liberties  by  concealing  it  in  the  charter  oak.  The  colonies, 
as  a  result  of  the  English  revolution  of  1688,  had  their  charters 
restored.  Very  shortly  after  the  accession  of  William  and  Mary, 
a  bill  to  restore  the  rights  of  those  English  corporations  which 
had  surrendered  their  charters  to  the  crown  during  the  reigns 
of  James  II.  and  Charles  U.,  was  introduced  into  parliament 
and  became  a  law,  with  the  general  applause  of  men  of  all 
parties.2 

Reference  has  already  been  made  to  the  fact  that  in  the 
time  of  Elizabeth,  the  controlling  power,  of  corporations  was 
virtually  vested  in  "  select  bodies."  To  remedy  these  and 
many  other  abuses,  the  Municipal  Corporation  Reform  Act 
(5  and  6  Will.  IV.  c.  76)  was  passed.  This  law  sought  to 
restore  corporations  to  their  original  design,  as  institutions  for 

1  There  were  eighty-one  quo  warranto  informations  brought  against  muni- 
cipal corporations  by  Charles  II.  and  James  II.  2  Chandl.  Com.  Debs. 
316. 

2  Macauley's  History  of  England,  Vol.  III.  Chap.  XV.,  where  a  graphic 
account  of  the  history  of  its  passage  is  given. 


16  MUNICIPAL   CORPORATIONS.  [CH.    I. 

the  local  government  of  the  place,  to  be  controlled  by  those 
interested  in  it,  and  not  by  a  favored  few.  It  is  undoubtedly 
true,  as  remarked  by  Mr.  Hallam,  that  "  No  political  institu- 
tion can  endure  which  does  not  rivet  itself  to  the  hearts  of 
men  by  ancient  prejudice  or  acknowledged  interest."  That  is, 
it  cannot  permanently  endure,  although  it  may  exist  long  after 
it  ought  to  cease.  If  ever  an  institution  outlived  its  usefulness, 
—  lived  long  after  it  became  a  positive  evil  —  it  was  the  muni- 
,  cipal  corporations  of  England,  prior  to  the  reform  act  just 
mentioned,  and  which  became  a  law  as  late  as  1835.  In  many 
important  places  in  England  the  number  of  corporators  ranged 
as  low  as  from  ten  to  thirty.  In  a  large  majority  of  the  muni- 
cipalities, the  corporations  were  close  ;  that  is,  the  governing 
body  had  the  power  to  determine  who  should  be  admitted  to 
freedom  or  citizenship ;  and  often  the  privilege  was  conferred 
upon  non-residents  and  the  residents  excluded.  The  most 
important  franchise  they  possessed  was  that  of  electing  mem- 
bers of  parliament,  and  this,  in  many  places,  was  the  principal 
function  of  the  corporation.  Not  only  were  the  councils 
self-elective,  but  their  tenure  was  for  life.  They  were  fre- 
quently controlled  by  a  single  party,  and  all  persons  entertain- 
ing other  opinions  were  of  course  excluded.  The  corporations 
were  not  in  sympathy  with,  nor  did.  they  reflect  the  wishes  of, 
the  people  over  whom  they  exercised  local  jurisdiction.  There 
was  no  check  upon  mal-administration.  The  property  was 
wasted ;  extravagance  characterized  the  expenditures  of  money; 
officers  were  elected  by  the  irresponsible  councils  from  favor- 
itism or  devotion  to  party.1  One  of  the  first  acts  of  the  Re- 
formed House  of  Commons  was  the  overthrow,  in  1835,  of 
this  intolerable  system,  by  the  passage  of  the  above-mentioned 
Municipal  Corporations  Statute,  to  which  we  shall  have  fre- 
quent occasion  to  refer  in  the  subsequent  pages  of  this  work. 
Lord  Brougham  has  many  titles  to  the  affectionate  re- 
gard of  posterity.  Eew  of  his  claims  are  stronger,  and  none 
more  valid,  than  those  which  arise  from  his  faithful  and  effect- 
ive services  in  promoting  the  reform  of  the  Municipal  Corpo- 
rations of  Great  Britian,  by  abolishing  these  self-elected  and 

1  Glover  on  Corp.  XXXVIII.  et  seq. ;  Eeport  of  Commissioners  of  Corpo- 
rate Inquiry,  32,  et  seq. 


CH.  I.J  INTRODUCTORY   HISTORICAL   VIEW.  17 

perpetual  councils,  and  by  organizing  the  corporations  upon  an 
uniform  model,  and  by  establishing  in  the  act  the  principle 
that  the  councils  should  be  selected  for  short  and  fixed  periods 
by  the  votes  of  the  burgesses,  thus  recognizing  and  adopting 
the  representative  system.  Mr.  Willcock,  in  concluding  his 
treatise, l  had  recommended  a  similar  reform,  but  disclaimed 
being  so  visionary  as  to  suppose  it  would  soon  be  effected,  since 
parliament  would  not  willingly  relinquish  its  influence  over 
venal  boroughs,  and  members  elected  by  corporations  would 
not  be  allowed  by  their  constituents  to  abandon  their  ancient 
though  unjust  privileges  ;  but  within  ten  years  from  the  time 
his  language  was  penned,  the  reform  of  which  he  almost  de- 
spaired was  accomplished. 

§  9.  In  general,  all  of  our  American  cities,  towns,  and 
counties  are  public  corporations,  full  or  quasi.  They  are  cre- 
ated by  the  legislature  and  are  usually  endowed  with  power  to 
legislate  upon,  decide,  and  control  local  and  subordinate  mat- 
ters pertaining  to  their  respective  localities.  The  number  and 
freedom  of  these  local  organizations,  whereby  political  power  is 
conferred  upon  the  citizens  of  the  various  local  subdivisions 
■of  a  state  who  have  a  right  to  vote  and  to  regulate  their  own 
domestic  concerns,  constitute  a  marked  feature  in  our  free 
system  of  government.2  In  general,  each  road-district,  each 
school-district,  each  city  and  each  county  is,  as  to  local  concerns, 

1  Willcock's  Municipal  Corp.  513,  514.  London,  with  its  "  great  and  not- 
able franchises,  liberties,  and  customs,"  to  treat  of  which,  says  Lord  Coke 
(4  Inst.,  250),  "  would  require  a  whole  volume  of  itself,"  was  not  embraced 
in  the  general  act  of  5  and  6  Will.  4,  Chap.  76,  but  there  was  subsequently- 
passed  an  important  statute  known  as  the  London  Corporation  Reform 
Act,  of  1849.    See  Suplement  to  Puling's  Laws,  etc.,  of  London. 

On  the  15th  day  of  August,  1867,  after  a  memorable  struggle  between  the 
lords  and  the  commons,  what  is  known  as  the  Disraeli  Reform  Bill,  became 
a  law  by  which  the  right  to  vote  for  members  of  parliament  for  boroughs 
was  greatly  extended. 

2 "In  all  quasi  corporations,  as  cities,  towns,  parishes,  school-districts, 
membership  is  constituted  by  living  within  certain  limits."  Per  Shaw,  C. 
J.,  Overseers  of  Poor,  etc.,  v.  Sears,    22  Pick.  122,  130. 

"  When  a  man,''  says  Mr.  Justice  Morton,  Oakes  v.  Hill,  10  Pick.  333, 
346    "  moves  into  a  town,  he  becomes  a  citizen  thereof  (if  possessed  of  the 
requisite  qualifications  as  to  age,  etc.,  and  if  he  remains  the  requisite  length 
of  time)  whatever  may  be  the  desire  of  himself  or  the  town." 
3 


18  MUNICIPAL    CORPORATIONS.  [CH.    If 

self-governed.  These  organizations  are,  of  course,  subject  to 
the  legislature  of  the  state,  and  their  acts,  so  far  as  they  affect 
private  rights,  are  also  the  subjects  of  judicial  cognizance  and 
review.  The  policy  of  creating  local  public  corporations  for 
the  management  of  matters  of  local  concern,  runs  back  to  an 
early  period  in  our  colonial  history,  is  exhibited  in  all  our  leg- 
islation, and  expressly  or  impliedly  guaranteed  in  our  state 
constitutions.1 

The  elective  franchise  in  these  "  local  republics  "  is  not,  as 
was  the  case  until  recently  in  England,  a  privilege  dependent 
upon  custom  or  usage,  or  confined  to  certain  classes,  but  is 
uniform  and  universal,  extending  to  all  of  the  adult  male  citi- 
zens. Old  sarums  and  rotten  boroughs,  as  well  as  property 
qualifications,  are  unknown.  The  effect  of  this  policy  of  estab- 
lishing cities,  towns,  and  districts  of  country  into  bodies  politic 
and  investing  the  citizens  thereof  with  the  power  of  self-gov- 
ernment, has  been  most  happy. 

It  has  been  noticed  by  Chancellor  Kent, 2  that  one  of  the 
most  philosophical  and  fair  of  foreign  observers 3   was  'much 

1  Kent  Com.  275 ;  Cooley  Const.  Limit.  Chap.  8.  See  also  this  learned ' 
author's  recent  opinion  in  the  Supreme  Court  of  Michigan,  in  the  People  v. 
Hurlburt,  not  yet  reported  (1871).  State  vs.  Noyes,  10  Fost.  (N.  H.)  292  ; 
Bow  v.  Allenstown,  34  N.  H.  351 ;  Caldwell  v.  Justices,  etc.,  4  Jones  (Nor. 
Car.)  Eq.323 ;  Comw.  v.  Roxbury,  9  Gray,  503,  510,  511,  note,  written  by  Mr. 
Gray,  now  one  of  the  justices  of  the  Supreme  Judicial  Court  of  Massachu- 
setts ;  Webster  v.  Hawrington,  32  Conn.  131.  In  Mr.  Quincy's  Municipal 
History  of  Boston,  Chap.  I.  will  be  found  an  interesting  historical  account 
of  the  constitution  of  towns  in  Massachusetts,  and  of  their  mode  of  organ- 
ization and  operation  —  particularly  of  the  town  of  Boston. 

2  2  Kent  Com.  275,  note. 

8  M.  De  Tocqueville,  Democracy  in  America :  "  Local  assemblies  of  citi- 
zens constitute  the  strength  of  free  nations.  Municipal  institutions  are  to 
liberty  what  primary  schools  are  to  science  ;  they  bring.it  within  the  peo- 
ple's reach ;  they  teach  men  how  to  use  and  how  to  enjoy  it.  A  nation 
may  establish  a  system  of  free  government,  but  without  the  spirit  of  muni- 
cipal institutions  it  cannot  have  the  spirit  of  liberty."  M.  De  Tocqueville's 
Democracy  in  America,  Chap.  V. 

"  From  time  immemorial,"  says  one  of  the  ablest  of  American  common 
law  judges,  "  the  counties,  parishes,  towns  and  territorial  sub-divisions  of 
the  country,  have  been  allowed  in  England,  and,  indeed,  required,  to  lay 
rates  on  themselves  for  local  purposes.  It  is  most  convenient  that  the  local 
establishments  and  police  should  be  sustained  in  that  manner  ;  and,  indeed, 
to  the  interest  taken  in  them  by  the  inhabitants  of  the  particular  districts, 


CH.  I.]  INTRODUCTORY   HISTORICAL    VIEW.  19 

struck  with  the  institutions  of  New  England  towns ;  and  con- 
sidered them  as  small  independent  republics,  in  all  matters  of 
local  concern,  and  as  forming  the  principle  of  the  life  of  Amer- 
ican liberty  existing  at  this  day. 

The  value  of  our  system  of  municipal  institutions,  to  whi  ch 
we  have  thus  alluded,  may  be  seen  on  comparing  the  political 
condition  of  the  people  of  the  United  States  with  that  of  the 
people  of  modern  France — selected  as  a  fair  example  of  a 
government  without  municipal  freedom.  France  is  a  highly 
centralized  government.  The  state  there  is  everything;  the 
people,  nothing.  Municipal  institutions,  with  a  democratic 
element,  or  with  the  power  of  independent  local  self-govern- 
ment, belong,  there,  to  the  past.  The  central  power  governs 
and  regulates  everything.  It  provides  amusements,  con- 
structs roads,  bridges,  internal  improvements,  controls  trade, 
inspects  manufactures.  The  effects  of  this  system  are  thus 
stated:  "Develop  in  the  slightest  degree  a  Frenchman's  men- 
tal faculties,  and  he  flies  to  a  town  as  surely  as  steel  filings 
fly  to  a  loadstone.  From  all  parts  of  France  men  of  great 
energy  and  resource  struggle  up  and  fling  themselves  on  the 
world  of  Paris.  There  they  try  to  become  great  function- 
aries. Through  every  department  of  the  eighty-four,  men  of 
less  energy  and  resource  struggle  up  to  the  provincial  capital. 
All  who  have,  or  think  they  have,  heads  on  their  shoulders, 

and  the  information  upon  law  and  public  matters  generally,  thereby  dif- 
fused through  the  body  of  the  people,  has  been  attributed  by  profound 
thinkers  much  of  that  spirit  of  liberty  and  capacity  for  self-government, 
through  representatives,  which  has  been  so  conspicuous  in  the  mother 
country,  and  which  so  eminently  distinguishes  the  people  of  America.  From 
the  foundation  of  our  government,  colonial  and  republican,  the  necessary 
sums  for  local  purposes  have  been  raised  by  the  people  or  authorities  at 
home.  Court-houses,  prisons,  bridges,  poor-houses,  and  the  like,  are  thus 
built  and  kept  up,  and  the  expenses  of  maintaining  the  poor,  and  of  prose- 
cutions and  jurors,  are  thus  defrayed,  and  of  late  (in  North  Carolina),  a 
portion  of  the  common  school  fund,  and  a  provision  for  the  indigent  insane 
are  thus  raised,  while  the  highways  are  altogether  constructed  and  repaired 
by  local  labor,  distributed  under  the  orders  of  the  county  magistrates. 
When,  therefore,  the  constitution  vests  the  legislative  power  in  the 
General  Assembly,  it  must  be  understood  to  mean  that  power  as  it  had  been 
exercised  by  our  forefathers,  before  and  after  their  migration  to  this  conti- 
nent." Per  Ruffin,  J.,  in  Caldwell  v.  Justices,  etc.,  4  Jones  (N.  Car.),  Eq. 
323,  1858. 


20  MUNICIPAL   CORPORATIONS.  [CH.    I. 

struggle  into  town  to  fight  for  office  which  the  government 
alone  can  confer.  The  whole  energy  and  knowledge  and  re- 
source of  the  land  are  barreled  up  in  the  towns — all  between 
towns  is  utter  intellectual  barrenness."1 

Such  are , the  withering  effects  of  a  centralized  despotism.2 
How  different  with  the  decentralized  system  ofgovernment  in 
the  United  States,  where  each  local  constituency  chooses  its 
own  officers — each  road-district,  school-district,  village,  town, 
city,  and  county  administers  its  own  affairs  by  the  people  and 
for  ;the  people.3 

1  Lond.  Morn.  Chron.  August,  1851. 

2  The  foregoing  was  written  prior  to  the  dethronement  of  Napoleon  III. 
and  the  communist  insurrection.  The  commune  movement  was  but  the 
natural  result  of  a  popular  uprising  against  centralized  power.  But  it  went 
to  the  other  extreme,  and  contemplated,  without  a  national  compact,  a  league 
of  36,000  independent  communes.  Their  declared  scheme  was  this : 
"  France  shall  no  longer  be  one  and  indivisible,  empire  or  republic ;  she 
shall  form  a  federation,  not  of  small  states  or  provinces,  but  of  free  cities, 
linked  together  only  so  far  as  shall  be  consistent  with  the  most  absolute  de- 
centralization and  local  government."  (Journal  Officiel  de  la  Commune, 
April,  1871.)  But  a  scheme  which  made  cities,  and  not  the  nation,  prac- 
tically the  sovereign,  is  radically  defective,  and  open  to  all  the  objections 
which  M.  Mazzini  has  so  forcibly  pointed  out  against  it.  (Contemporary 
Keview,  1871 :  reprinted  Littell's  Living  Age,  July,  1871,  p.  112.) 

3  Barrett  v.  Brooks,  21  Iowa,  144,  151.  By  constitutional  provision  in 
New  York,  "  It  belongs,  exclusively,  to  the  local  power  to  fill  the  offices, 
either  by  election  or  appointment,  as  the  legislature  may  direct."  Met. 
Bd.  Health  v.  Heister,  37  N.  Y.  661,  667.  See  also  constitution  of  Illinois, 
Art.  IX.  Sec.  5:  construed,  People  v.  Chicago,  51  111.  17,  1869. 

Speaking  of  the  power  of  creating  debts  and  expending  money  by  the 
city  of  Philadelphia,  under  the  Consolidation  Act  of  1854,  in  a  case  where 
it  was  held  that  this  power  had  been  vested  in  the  legislative  department, 
and  not  with  subordinate  officers,  Agnew,  J.,  observed :  "  It  is  manifest 
that  the  city  government  is  founded,  in  its  leading  thought,  upon  the 
American  idea  of  a  popular  representative  government,  its  immediate  pro- 
totype being  the  form  of  the  state  government.  The  right  of  supervision 
and  control  is  therefore  vested  in  the  councils  as  the  immediate  represent- 
atives of  the  popular  will,  which  exerts  and  enforces  its  determining  power 
by  means  of  constantly  recurring  elections.  Subject  to  this  primary  power 
the  affairs  of  this  people,  great  in  numbers,  wealth,  intelligence,  and  influ- 
ence, are  conducted  by  departments  and  officers."  Philadelphia  v.  Flani- 
gen,  47  Pa!  St.  21,  1864. 

"  What,"  inquired  the  Abbe  Sieyes,  in  a  book  which  gave  a  powerful 
impulse  to  the  public  mind  at  the  beginning  of  the  French  revolution  of 
1789— "What  is  the  tiers  etatf"    And  he  answered,  "Nothing."    What 


CH.  I. J  INTRODUCTORY   HISTORICAL   VIEW.  21 

To  civil  territorial  divisions,  erected  into  corporations  i  with 
defined  powers  of  local  administration,  and  the  extension  of 
the  right  to  vote  for  officers,  to  all  who  are  to  be  affected  by 
their  action,  are  due  that  familiarity  with  public  affairs  and 
that  love  of  liberty  and  regard  for  private  rights  and  property, 
which  are  characteristic  of  the  best  government  in  Europe, 
Great  Britain,  and  the  best  in  America,  the  United  States.1 

But  the  picture  is  not  without  its  shadows.  There  are  evils 
either  inherent  in  our  municipal  corporations,  or  which  so 
generally  attend  their  administration  as  to  favor  the  notion 
that  they  are  inherent,  which  have  greatly  detracted  from  their 
value.  Some  of  these  may  be  briefly  indicated  :  1.  Men  the 
best  fitted  by  their  intelligence,  business  experience,  capacity, 
and  moral  character,  for  local  governors  or  counsellors,  are  not 
always,  it  is  feared  it  might  be  added,  are  not  generally,  chosen. 
2.  Those  chosen  are  too  apt  to  merge  their  individual  conscience 
in  their  corporate  capacity.     Under  the  shield  of  their  corpor- 

ought  it  to  be?  "Everything."  Thiers's  French  Rev.  Vol.  I.  p.  27 ;  Guizot 
Hist.  Civ.  Lect.  VII.  On  this  popular  foundation  rests  not  only  our  na- 
tional government,  but  as  well  all  of  our  state  governments  and  municipal 
institutions. 

1  After  alluding  to  the  antiquity  of  this  system  in  England,  Mr.  Justice 
Brown,  in  the  important  case  of  The  People  v.  Draper  (15  N.  Y.  532, 
562),  says :  "  Wherever  the  Anglo-Saxon  race  have  gone,  wherever  they 
have  carried  their  language  and  laws,  these  communities,  each  with  a 
local  administration  of  its  own  selection,  have  gone  with  them.  It  is  here 
that  they  have  acquired  the  habits  of  subordination  and  obedience  to  the 
laws,  of  patient  endurance,  resolute  purpose,  and  knowledge  of  civil  govern- 
ment, which  distinguish  them  from  every  other  people.  Here  have  been  the 
seats  of  modern  civilization,  the  nurseries  of  public  spirit,  and  the  centres  of 
constitutional  liberty.  They  are  the  opposites  of  those  systems  which  col- 
lect all  power  at  a  common  centre,  to  be  wielded  by  a  common  will,  and  to 
effect  a  given  purpose,  which  absorb  all  political  authority,  exercise  all  its 
functions,  distribute  all  its  patronage,  repress  the  public  activity,  stifle  the 
public  voice,  and  crush  out  the  public  liberty."  "  The  city  corporations," 
remarks  a  modern  jurist,  "  which  have  grown  up  in  modern  times,  are  of 
infinite  advantage  to  society  ;  they  bind  men  more  closely  together  than 
does  any  other  form  of  political  association.  But  that  which  most  remark- 
ably distinguishes  them  from  the  close  corporations  which  formerly  existed, 
is  the  general  spirit  of  freedom  which  has  been  breathed  into  them.  More 
especially  is  this  the  case  with  town  corporations  in  America,  which  are  as 
different  from  those  of  England  as  the  latter  are  from  similar  corporations 
in  Scotland  and  Holland."  Per  Grimke,  J.,  Rosebaugh  v.  Saffln,  10  Ohio, 
31,  36  ;  see  also  State  v.  Noyes,  10  Fost.  (N.  H.)  292. 


22  MUNICIPAL   CORPORATIONS.  [CH.    I. 

ate  character  men  daily  do  acts  which  they  would  never  do  as 
individuals.  The  public,  as  if  to  retaliate,  act  towards  corpora- 
tions in  the  same  spirit.  The  notion,  though  not  avowed,  is 
by  far  too  much  acted  upon,  that  all  that  can  be  obtained  from 
a  public,  or,  indeed,  from  any  corporation,  is  legitimate  spoil. 
Against  these,  men,  usually  honest  and  fair  in  their  dealings, 
do  not  scruple  to  make  demands  which  they  would  never,  make 
against  an  individual.1  3.  As  a  result,  the  administration 
of  the  affairs  of  our  municipal  corporations  is  too  often  both 
unwise  and  extravagant. 

Municipal  corporations  are  institutions  designed  for  the 
local  government  of  towns  and  cities  ;  or,  more  accurately, 
towns  and  cities,  with  their  inhabitants,  are,  for  purposes  of  sub- 
ordinate local  administration,  invested  with  a  corporate  char- 
actor.  To  clothe  them  with  powers  to  accomplish  purposes 
which  can  better  be  left  to  private  enterprise,  as,  for  example,  to 
build  markets,  is  unwise.  They  should  regulate  and  govern, but 
hot  own,  them.  To  invest  them  with  the  powers  of  individuals 
pr  private  corporations,  for  objects  not  pertaining  to  municipal 
rule,  is  to  pervert  the  institution  from  its  legitimate  ends,  and 
to  require  of  it  duties  it  is  not  adapted  satisfactorily  to  exe- 
cute. Some  of  the  evil  effects  of  municipal  rule  have  arisen 
from  legislation  unwisely  conferring  upon  municipalities,  at 
the  suggestion,  often,  of  interested  individuals  or  corporations, 
powers  foreign  to  the  nature  of  these  institutions,  and  not 
necessary  to  enable  them  to  discharge  the  appropriate  functions 
and  duties  of  municipal  administration.  Among  the  most 
conspicuous  instances  of  such  legislation,  may  be  mentioned 
the  power  to  aid  in  the  building  of  railways,  to  incur  debts, 
often  without  any  limit,  or  any  which  is  effectual,  and  to  issue 
negotiable  securities.  The  result  has  too  often  been  that 
deb1;s  are  incurred  so  large  that  they  press  with  disastrous 

1  These  effects  are  not  confined  to  this  side  of  the  Atlantic.  "  It  is  a  fa- 
miliar fact,"  says  Mr.  Herbert  Spencer,  "  that  the  corporate  conscience  is 
ever  inferior  to  the  individual  conscience  —  that  a  body  of  men  will  com- 
mit, as  a  joint  act,  that  which  every  individual  of  them  would  shrink  from, 
did  he  feel  personally  responsible."  Essays,  No.  VII.  p.  261,  Am.  Ed.  1865  ; 
and  see,  ib.  Essays,  No.  V.  for  a  description  — •  perhaps  too  highly  colored 
—  of  the  unsatisfactory  working  of  the  English  reformed  municipal  corpor- 
ations. 


CH.  I.]  INTRODUCTORY   HISTORICAL   VIEW.  23 

Weight  on  the  municipality  and  its  citizens.  Extraordinary 
and  extra-municipal  powers  have  been  too  often  incautiously 
or  unwisely  granted,  and  the  charters  or  constituent  acts  care- 
lessly worded  and  loosely  construed.  The  remedy  suggested 
by  experience  consists,  in  part,  in  constitutional  provisions 
prohibiting  the  granting  of  special  charters,  and  requiring  all 
municipal  corporations  to  be  organized  under  general  laws. 
The  legislature  should  also  be  prohibited  from  allowing  mu- 
nicipal corporations  to  engage  in  extra-municipal  projects,  or 
to  assist  in  private  enterprises,  or  to  incur  debts  or  levy  taxes 
for  such  purposes.  The  powers  granted  to  such  corporations, 
and  especially  the  power  to  levy  taxes,  should  be  more  care- 
fully defined  and  limited,  and  should  embrace  such  objects  only 
as  are  necessary  for  the  health,  welfare,  safety,  and  convenience  of 
the  inhabitants.2  The  amount  of  indebtedness  that  may  be 
incurred,  even  for  municipal  purposes,  should  also  be  limited 
beyond  the  power  to  be  evaded. 

Experience  has  also  demonstrated  the  necessity  of  more 
power  and  more  responsibility  in  the  executive  head  of  our 
municipal  institutions.  Too  often  the  duties  of  the  mayor  or 
executive  officer  are  only  nominal,  and  to  these  he  gives  but 
little  attention  —  a  natural  result  of  his  want  of  importance, 
and  of  his  inability  to  control  the  administration  of  municipal 
affairs.     If  the  office  be  clothed  with  dignity  and  real  author- 

2  "  The  great  increase  of  corruptions  in  municipal  bodies,  growing  out  of 
the  ability  to  create,  by  taxation,  a  fund  which  may  be  squandered,  has 
made  many  thinking  men  doubt  the  wisdom  of  endowing  them  with  the 
power ; "  Mr.  Justice  Miller,  in  Rusch  v.  Des  Moines  County,  1  Woolw.  C.  C. 
313,  322,  1868.  And  note  the  striking  observations  of  Mr.  Justice  Agnew,  on 
the  abuses  which  attend  the  administration  of  finances  by  municipal  bodies 
and  officers,  and  the  too  prevalent  frauds  in  the  procurement  and  execution 
of  public  contracts ;  Philadelphia  v.  Flanigan,  47  Pa.  St.  21 ;  Hague  v.  Phila- 
delphia, 48  ib.  527.  In  the  case  first  cited,  the  suggestion  of  the  text  as  to  the 
wisdom  of  strictly  guarding  and  limiting  the  power  to  create  debts,  is  well 
enforced  by  this  learned  judge.  He  truly  says :  "  A.  valid  contract  is  uncon- 
trollable ;  demanding  its  performance  at  the  hands  of  the  judiciary,  and 
calling  to  their  aid  the  whole  power  of  the  government.  If  an  appropria- 
tion for  its  payment  is  not  made  this  year,  it  must  be  in  the  next  or  some 
following."  The  gigantic  and  astounding  frauds  and  corruption  which  have 
been  recently  revealed  (1871)  in  the  local  administration  of  the  affairs  of 
the  great  city  of  New  York  have  awakened  public  attention  to  the  necessity 
of  more  efficient  checks  upon  the  misuse  of  municipal  powers. 


24  MUNICIPAL   CORPORATIONS.  [CH.    I. 

ity;  if  tlio  mayor  shall  be  invested  with  the  veto  power;  if  he 
shall  have  the  sole  right  to  appoint  and  the  unrestricted 
power  to  suspend  or  remove  subordinate  officials  or  heads  of 
departments,  then  the  citizens  can  justly  demand  of  him  that 
he  shall  be  individually  responsible  for  the  proper  conduct  of 
the  concerns  of  the  municipality,  and  if  grievances  exist,  they 
will  know  to  whom  to  apply'  for  remedy,  or  upon  whom  to  fix 
the  blame.1 

Municipal  corporations,  as  they  exist  in  this  country,  it  may 
be  further  suggested,  are  of  exceedingly  complex  character. 
Wot  here  to  allude  to  the  legal  complexity  which  arises  from 

1  Extended  observation  of  the  workings  of  our  municipal  institutions 
has  satisfied  the  author  that  the  views  expressed  in  the  text  are  sound,  and 
he  is  glad  to  find  them  confirmed  by  the  Hon.  Josiah  Quincy  in  his  "  Mu- 
nicipal History  of  Boston,"  published  in  1852.  Mr.  Quincy  was  mayor  of 
the  city  of  Boston  from  1823  to  1828,  inclusive,  and  his  opinions  are  entitled 
to  great  respect,  not  only  from  his  known  ability,  but  large  experience  in 
municipal  affairs.  It  is  interesting  to  observe  the  striking  coincidence  of 
his  views  with  the  recommendations  of  the  "  Committee  of  Seventy,"  of 
New  York,  respecting  municipal  administration  and  the  importance  of  ef- 
ficient executive  superintendence,  control,  and  responsibility.  Municipal 
Hist,  of  Boston,  Chap.  V.  And  to  same  effect  is  Mr.  Charles  Nordhoff 's  in- 
teresting article  in  the  North  American  Review  for  October,  1871,  entitled, 
"The  Misgovernmeiit  of  New  York, — A  Remedy  Suggested."  This  vigor- 
ous writer  sketches  the  defects  in  the  ordinary  municipal  charters  with  a 
masterly  hand,  and  shows  great  familiarity  with  the  subject  of  which  he 
treats.    Many  of  his  suggestions  may  be  profitably  studied  by  the  legislator. 

In  the  Galaxy  Magazine  for  February,  1872,  the  article  just  mentioned  is 
reviewed  by  Mr.  Isaac  Butts,  who  contends  that  the  only  efficient  cure  for 
municipal  evils  is  to  assimilate  local  government  to  that  of  private  corpo- 
rations, giving  the  real  and  ultimate  control  of  all  municipal  affairs  except 
education  and  the  support  of  the  poor,  to  the  property  interests  of  the  mu- 
nicipality. He  maintains  that  a  "  municipality  is  essentially  a  moneyed 
corporation  rather  than  a  political  community  or  a  diminutive  state."  He 
insists  that  "the  basis  of  municipal  authority  should  be  changed  in  some- 
thing like  the  manner  following:  1st.  Let  every  person  cast  one  vote,  as  at 
present.  2d.  In  addition  to  the  above,  let  every  person,  corporation,  and 
firm,  without  regard  to  residence  or  sex,  cast  one  vote,  in  person  or  by 

proxy,  for  every  $ for  which  they  respectively  were  assessed  on  the 

last  general  assessment  roll  of  the  city.  3d.  A  plurality  of  the  aggregate 
vote  to  elect." 

It  may  be  observed,  that  in  England,  under  the  reformed  municipal  sys- 
tem, the  right  to  a  voice  in  municipal  management  is  restricted  to  occupiers 
of  houses  and  tax-payers,  and  yet  we  have,  as  we  have  seen,  complaints  of 
municipal  extravagance,  corruption,  and  abuse. 


CH.  I.]  INTRODUCTORY   HISTORICAL   VIEW.  25 

their  corporate  nature,  we  may  mention  that  wniek  arises  from 
the  exceedingly  diverse  character  of  the  multiform  duties 
which  are  confided  to  their  agency  ia©jd  management,  requiring 
the  delegation  of  corresponding  powers  and  provisions  for 
their  execution.  Some  of  these  powers  are  civil  or  political, 
and  not  peculiar  to  the  people  of  the  municipality;  others 
are  purely  local,  of  which  some  concern  all  the  inhabitants  and 
some  affect  only,  or  mainly,  the  property  owners,  on  whom, 
exclusively,  the  burden  of  their'  exercise,  or  administration, 
falls.  In  the  ordinary  municipal  charters,  the  essential  differ- 
ences between  these  powers  have  not  been  regarded,  and,  in 
consequence,  adequate  checks  upon  their  abuse  have  not  been 
provided. 

The  general  right  of  suffrage  will  remain,  and,  in  the  author's 
judgment,  ought  to  remain  as  extensive  in  the  municipality  as 
in  the  state,  and  all  schemes  of  municipal  reform  based  upon 
restricting  it  are  simply  impracticable.  But  if  special  or  extra- 
municipal  powers  be  granted,  not  affecting  civil,  political,  or 
other  rights  which  concern  all,  but  which  involve  directly  the 
expenditure  and  payment  of  money,  it  is  but  just  that  the  pro- 
ject should  be  required  to  have  the  support  of  a  majority  of 
those  who  must  pay  the  expense. 

No  small  proportion  of  corruption  and  abuse  in  municipali- 
ties has  had  its  source  in  their  authority  to  make  public  and 
local  improvements.  The  power  is  usually  conferred  without 
sufficient  care,  and  the  rights  of  the  property  owners  (often 
made  liable  for  the  whole  cost  of  the  improvement  or  amount 
of  the  expenditure)  not  sufficiently  respected  and  guarded. 

As  it  is  the  part  of  wisdom  to  organize  municipal  corpora- 
tions under  general  laws,  so  that  defects  and  abuses,  being  gen- 
erally seen  and  felt,  will  be  the  more  speedily  and  better  rem- 
edied by  the  legislature,  so  municipal  corporations  should  be 
shorn  of  the  power  to  grant  special  privileges,  except  under 
ordinances,  general  in  their  character,  and  which,  on  equal 
terms,  will  make  them  available  to  all. 

The  courts,  too,  have  duties,  the  most  important  of  which  is 
to  require  these  corporations,  in  all  cases,  to  show  a  plain  and 
clear  grant  for  the  authority  they  assume  to  exercise  ;  to  lean 
aqairlst  constructive  powers,  and,  with  firm  hands,  to  hold  them 


26  MUNICIPAL    CORPORATIONS.  [CH.    I. 

and  their  officers  within  chartered  limits.  But  with  all  the 
drawbacks  we  have  mentioned  (many  of  which  are  remediable) 
our  system  of  popular  municipal  organization  and  adminis- 
tration is,  beyond  controversy,  the  fairest  to  the  individual 
citizen,  and,  on  the  whole,  the  most  satisfactory  in  its  opera- 
tions and  results  of  any  that  has  yet  been  devised.  Any  other 
conclusion  would  be  equivalent  to  admitting  that  the  people 
are  incapable  of  enlightened  self-government ;  that  holders  of 
property  ought  alone  to  be  respected,  and  alone  be  endowed 
with  political  and  municipal  rights  ;  that  the  few  should  gov- 
ern the  many,  and  that  our  representative  system,  the  flower 
of  modern  civilization,  based  upon  the  equal  right  of  every 
man  to  a  voice  in  the  local  and  general  government,  is  a  fail- 
ure. It  is  not  improbable  that  we  sometimes  over-estimate 
the  shortcomings  in  the  practical  workings  of  our  municipal 
system,  for  the  system  is  an  open  one,  in  which  all  are  inter- 
ested to  bring  its  abuses  into  the  light  of  day.  The  fine  obser- 
vation of  Lord  Bacon  fitly  applies  : .  "  The  best  governments  are 
always  subject  to  be  like  the  fairest  crystals,  wherein  every  icicle-  or 
grain  is  seen,  which  in  a  fouler  stone  is  never  perceived." 


CH.  II.]  CORPORATIONS   DEFINED   AND   CLASSIFIED.  27 


CHAPTEB  II. 

Corporations  Defined  and  Classified. 

§  8.  A  corporation  is  a  legal  institution,  devised  to  confer 
upon  the  individuals  of  which  it  is  composed  powers,  privil- 
eges, and  immunities  which  they  would  not  otherwise  possess, 
the  most  important  of  which  are  continuous  legalidentity  and 
perpetual  or  indefinite  succession,  under  the  corporate  name, 
notwithstanding  successive  changes,  by  death  or  otherwise,  in 
the  corporators  or  members  of  the  corporation.  It  conveys, 
perhaps,  as  intelligible  an  idea  as  can  be  given  by  a  brief  defi- 
nition to  say,  that  a  corporation  is  a  legal  person,  with  a  special-^ 
name,  and  composed  of  such  members,  and  endowed  with  such 
powers,  and  such  only  as  the  law  prescribes.  The  most  accu- 
rate notions  of  complex  subjects  come  not  from  definition,  but 
description ;  and  in  the  course  of  the  present  work  we  shall  de- 
scribe the  class  of  corporations  with  which  it  deals,  by  their 
creation,  constitution,  faculties,  powers,  duties,  liabilities,  and 
purposes.  Some  of  the  definitions  and  deductions  in  the  earlier 
reports  amuse  by  their  quaintness,  but  are  without  much  prac- 
tical value.  "  As  touching  corporations,"  says  Lord  Coke,  "  the 
opinion  of  Manwood,  chief  baron,  was  this :  that  they  were  in- 
visible, immortal,  having  no  conscience  or  soul;  and,  there- 
fore, no  subpoena  lieth  against  them ;  they  cannot  speak,  nor 
appear  in  person,  but  by  attorney."1 

Chief  Justice  Marshall's  description  of  a  corporation  is  re- 
markable for  its  general  accuracy  and  felicitous  expression : 
"  A  corporation  is  an  artificial  being,  invisible,  intangible,  and 
existing  only  in  contemplation  of  law.  Being  the  mere  crea- 
ture of  the  law,  it  possesses  only  those  properties  which  the 
charter  of  its  creation  confers  upon  it,  either  expressly  or  as 
incidental  to  its  very  existence.  These  are  such  as  are  sup- 
posed to  be  best  calculated  to  effect  the  object  for  which  it  is 

1  2  Bulst.  233  ;  Willc.  Carp.  15. 


28  MUNICIPAL   CORPORATIONS.  [CHI  II. 

created.  Among  the  most  important  are  immortality  [in  the 
legal  sense  that  it  may  be  made  capable  of  indefinite  duration], 
and,  if  the  expression  may  be  allowed,  individuality  —  proper- 
ties by  which  a  perpetual  succession  of  many  persons  are  con- 
sidered as  the  same,  and  may  act  as  a  single  individual.  They 
enable  a  corporation  to  manage  its  own  affairs,  and  to  hold 
property  without  the  perplexing  intricacy,  the  hazardous  and 
endless  necessity  of  perpetual  conveyances  for  the  purpose  of 
transmitting  it  from  hand  to  hand.  It  is  chiefly  for  the  pur- 
pose of  clothing  bodies  of  men,  in  succession,  with  these  qual- 
ities and  capacities,  that  corporations  were  invented  and  are  in 
use.  By  these  means  a  perpetual  succession  of  individuals  are 
capable  of  acting  for  the  promotion  of  the  particular  object 
like  one  immortal  being." '  Thus,  though  the  members 
change,  the  corporation  itself  remains,  in  its  legal  personality, 
the  same,  all  of  its  members,  past  and  present,  constituting,  in 
law,  but  one  person,  in  the  same  manner  as  the  Thames,  or 
the  Mississippi,,  is  stilT  the  same  river,  though  the  parts  com- 
posing it  are  constantly  changing.2  The  above  observations 
are,  in  general,  applicable  to  all  corporations,  private  as  well 
as  public  or  municipal. 

§  9.  Municipal  corporations  are  bodies  politic  and  corporate 
of  the  general  character  above  described,  established  by  law,  i& 
share  in  the  civil  government  of  the  country,  but  chiefly  to  regu- 
late and  administer  the  local  or  internal  affairs  of  the  city,  town, 
or  district  which  is  incorporated.3    Like  other  corporations,  they 

'  Dartmouth  College  v.  Woodward,  4  Wheat.  636,  181&  Other  defini- 
tions :  4  Black.  Com.  37  ;  1  Kyd  Corp.  13  ;  Grant  Corp.  3,  4  ;  Angell  &  Am. 
Corp.  Sec.  1 ;.  Glower  Corp.  3,  6.  Willcock  declines  to  define,  but  decribes 
corporations :  Munic.  Corp.  15.  The  last  author  observes  that  "  A  corpora-, 
tion  continues  the  same  body  politic  from  its  creation  to  its  dissolution, 
unaltered  by  the  revolution  of  ages  or  the  successive  changes  of  its  mem- 
bers,, so  that  it  is  unnecessary  to  make  grants  to  them  and  their  success- 
ors,, or  to  declare  their  obligations  binding  on  their  successors."  lb.  16  ; 
Glover,  8  ;  Grant,  5 ;  7  Vin.  Abr.  358,  363. 

*  Glover,  8  ;  1  Black.  Com.  468. 

3  "  A  body  politic,"  says  Lord  Coke,  "  is  a  body  to  take  in  succession, 
framed  as  to  its  capacity  by  policy,  and  therefore  is  called  by  Littleton  (Sec. 
413)  a  body  politic  ;  it  is  called  a  corporation,  or  body  corporate,  because  the 
persons  are  made  into  a  body,  and  are  of  a  capacity  to  take,  grant,  &e.,  by  a 


OB.  II.]  CORPORATIONS   DEFINED   AND.  CLASSIFIED.  2& 

must  b©  created  by  law.  They  possess  no  powers  or  faculties 
not.  conferred  upon  them,  either  expressly  or  by  fair  implica- 
tion, by  the  law  which1  creates  them,  or  other  statutes  applica- 
ble to  them.  Persons  residing  in  or  inhabiting  a  place  to  be 
incorporated,,  as  well  as  the  place  itself,  are  —  both  the  persons' 
and  the  place  —  indispensable  to  the  constitution  of  a  munici- 
pal corporation.  Artificial  succession,  also,  is  of  the  essence 
of  such  a  corporation.  Municipal  corporations  are  created  and 
exist  for  the  public  advantage,  and  not  for  the  benefit  of  their 
officers  or  of  particular  individuals  or  classes.  The  corpora- 
tion is  the  artificial  body  created  by  the  law,  and  not  the'  offi- 
cers, since  these  are,  from  the  lowest  up  to  the  councilmen  or  may- 
<dt,  the  mere  ministers  of  the  corporation.  Even  the  council,  or' 
other  legislative  or  governing  body,  constitutes^  as  it  hasi 
been  well  remarked,  neither  the  corporation,  nor  in  them- 
selves- m  corporation.1  It  is  quite  impossible,  in  any  brief 
space,  to  convey  an  adequate  idea  of  the  exact  nature  and 
properties  of  a  municipal  corporation.  There  is  nothing  in  the 
law  more  complex  and  abstruse.  Although  the  inhabitants  of  a 
place  be  incorporated,  they  do  not  constitute  the  corporation  ; 
neither,  as  we  have  just  observed,,  is  it  constituted  by  the  gov- 
erning body.  Notwithstanding  Mr.  Kyd's  criticism,  the  cor- 
poration is  invisible,  for,  although  we  may  see  all  the  inhabi- 
tants, or  all  .of  the  officers,  we  do  not  see  the  legal  body  which 
makes  the  corporation  as  we  see  an  army ;  but  this  is  a  pro- 
perty common  to  all  corporations.  An  additional  complexity 
in  municipal  corporations  arises  out  of  the  various  and  diverse 
powers  usually  conferred,  giving  them  an  extremely  compo- 
site character.  The  primary  and  fundamental  idea  of  a  mu- 
nicipal corporation  is  an  agency  to  regulate  and  administer 

particular  name.  Viner's  Abr.  Corp  {a  2).  A  municipal  corporation  is  also 
defined  to  be  "  An  investing  the  people  of  a  place  with  the  local  govern- 
ment thereof."  Salk.183.  "  This  latter  description,"  says  Mr.  Justice  Nelson, 
in  The  People  v.  Morris,  13  Wend.  325,  334, 1835,  "  is  the  most  appropriate, 
and  is  justified  by  the  history  of  these  institutions,  and  the  nature  of  the 
powers  with  which  they  were,  and  are,  invested."  It  is  also  quoted  by 
Campbell,  C.  J.,  in  The  People  v.  Hurlburt,  Supreme  Court  of  Michigan, 
November  term,  1871,  not  yet  reported. 

1  KegL.«..  Paramore,  10  Ad.  &,E1.  286 ;  Keg;  v.  York,  2  Q.  B.  850 ;  Grant, 
357  ;  Glover,  4  ;  Harrison  v.  Williams,  3  Barn.  &  Cress.  162. 


30  MUNICIPAL   CORPORATIONS.  [CH.    II. 

the  internal  concerns  of  a  locality  in  matters  peculiar  to  the  place 
incorporated,  and  not  common  to  the  state  or  people  at  large  ; 
but  it  is  the  constant  practice  of  the  states  to  make  use  of  the 
incorporated  instrumentality,  or  of  its  officers,  to  exercise  pow- 
ers, perform  duties,  and  execute  functions  not  strictly  or  prop- 
erly local  or  municipal  in  their  nature,  but  which  are,  in  fact, 
•  state  powers,  exercised  by  local  officers,  within  defined  ter- 
ritorial limits ;  and  it  is  important,  as  we  shall  hereafter  see, 
to  keep  this  distinction  in  mind.  In  theory,  the  two  classes  of 
powers  are  distinct ;  but  the  line  which  separates  the  one  from 
the  other  is  often  very  difficult  to  trace.  The  point  may  be 
illustrated  from  the  English  law :  If  the  king  incorporate  a 
town,  its  officers  will  have  no  implied  power  as  conservators 
or  justices  of  the  peace ;  express  words  are  necessary  to  confer 
this  power,  and  when  they  act  in  the  latter  capacity,  it  is  not 
because  they  are  corporate  officers,  but  because  of  powers  ex- 
pressly annexed  to  their  corporate  offices,  and  the  two  capacities 
remain  distinct,  although  united  in  the  same  person.1  The  sub- 
ject itself  will  be  elsewhere  discussed.  The  name  of  the  mu- 
nicipal corporation,  its  boundaries,  its  officers,  its  powers,  its  duties, 
and  the  like,  are  subjects  regulated  by  legislative  enactment, 
and  will  be  hereafter  noticed. 

§  10.  Corporations  intended  to  assist  in  the  conduct  of  local 
civil  government  are  sometimes  styled  political,  sometimes  pub- 
lic, sometimes  einil,  and  sometimes  municipal,  and  certain  kinds 
of  them  with  very  restricted  powers  — .  quasi  corporations  — 
all  these  by  way  of  distinction  from  private  corporations.  All 
corporations  intended  as  agencies  in  the  administration  of 
civil  government,  are  public,  as  distinguished  from  -private  cor- 
porations. Thus  an  incorporated  school-district,  or  county,  as 
well  as  city,  is  a  public  corporation ;  but  the  school-district  or 
county,  properly  speaking,  is  not,  while  the  city  is,  a  municipal 
corporation.  All  municipal  corporations  are  public  bodies,  cre- 
ated for  civil  or  political  purposes ;  but  all  civil,  political  or 
public  corporations  are  not,  in  the  proper  use  of  language, 
municipal  corporations.     The  phrase  Municipal  Corporations, 

1  1  Kyd,  327 ;   People  v.  Hurlburt,  Supreme  Court  of  Michigan,  1871,  not 
yet  reported,  per  Campbell,  C.  J. 


CH.  II.]  CORPORATIONS   DEFINED   AND    CLASSIFIED.  81 

in  the  contemplation  of  this  treatise,  has  reference  to  incorpo- 
rated villages,  towns  and  cities,  as  distinguished  from  other  public 
corporations,  such  as  counties  and  quasi  corporations.1 

1  Hamilton  Co.  v.  Mighels,  7  Ohio  St.  109, 1857. 
The  distinction,  as  it  is  usually  drawn  between  municipal  corporations  proper, 
such  as  chartered  towns  and  cities,  or  towns  and  cities  voluntarily  organ- 
ized under  general  incorporating  acts,  such  as  exist  in  a  number  of  the  states, 
and  involuntary  quasi  corporations,  such  as  counties,  is  clearly  set  forth  in  the 
carefully  prepared  opinion  of  Brinkerhoff,  J.,  delivering  the  judgment  of  the 
Supreme  Court  of  Ohio  in  the  case  just  cited.  "  Municipal  corporations  proper" 
he  observes,  "  are  called  into  existence,  either  at  the  direct  solicitation  or  by 
the  free  consent  of  the  persons  composing  them,  for  the  promotion  of  their 
own  local  and  private  advantage  and  convenience."  On  the  other  hand, 
"  Counties  are  at  most  but  local  organizations,  which,  for  the  purposes  of 
civil  administration,  are  invested  with  a  few  functions  characteristic  of  a 
corporate  existence.  They  are  local  sub-divisions  of  a  state,  created  by  the 
sovereign  power  of  the  state,  of  its  own  sovereign  will,  without  the  partic- 
ular solicitation,  consent,  or  concurrent  action  of  the  people  who  inhabit 
them.  The  former  (municipal)  organization  is  asked  for,  or  at  least  assented 
to,  by  the  people  it  embraces  ;  the  latter  organization  (counties)  is  superim- 
posed by  a  sovereign  and  paramount  authority. 

A  municipal  corporation  proper  is  created  mainly  for  the  interest,  advan- 
tage, and  convenience  of  the  locality  and  its  people  ;  a  county  organization 
is  created  almost  exclusively  with  a  view  to  the  policy  of  the  state  at  large, 
for  purposes  of  political  organization  and  civil  administration,  in  matters  of 
finance,  of  education,  of  provision  for  the  poor,  of  military  organization, 
of  the  means  of  travel  and  transport,  and  especially  for  the  general  admin- 
istration of  justice.  With  scarcely  an  exception,  all  the  powers  and  func- 
tions of  the  county  organization  have  a  direct  and  exclusive  reference  to 
the  general  policy  of  the  state,  and  are  in  fact,  but  a  branch  of  the  general 
administration  of  that  policy."  The  learned  judge,  adverting  to  the  case 
in  hand  in  which  it  was  sought  to  make  the  county  liable  in  damages  to 
one  who  suffered  a  personal  injury  from  the  neglect  of  the  commissioners 
of  the  county  in  the  discharge  of  their  official  duties,  says  :  "  But,  it  is  said, 
the  members  of  the  board  of  county  commissioners  are  chosen  by  the  elect- 
ors of  the  county,  and  hence  the  board  is  to  be  regarded  as  the  agents  of  the 
county,  for  whose  torts,  in  the  performance  of  official  duties,  the  county 
ought  to  be  responsible.  True,  the  people  of  the  county  elect  the  board  of 
county  commissioners ;  but  they  also  elect  the  sheriff  and  treasurer  of  the 
county.  Are  the  people  of  the  county,  therefore,  responsible  for  the  mal- 
feasances in  office  of  the  sheriff  or  for  the  official  defalcations  of  the  county 
treasurer  ?  This  will  not  be  pretended.  *  *  *  *  *  *  We  cannot 
but  think  that  county  commissioners  are  not  agents  or  representatives  of 
the  county  in  any  such  sense  or  manner  as  to  render  the  people  of  the 
county  justly  answerable  for  their  neglect ;  even  if  the  neglect  be  such  as 
would  create  a  civil  liability  against  a  natural  person  or  a  municipal  or 
private  corporation."   "  It  is,"  he  adds, "  undoubtedly  competent  for  the  leg- 


32  MUNICIPAL    C0RPOEATIONS.  [CH.   II. 

Civil  corporations  are  of  different  grades  or  classes,  but  m 
essence  .and  nature  they  must  all  be  regarded  as  public.  The 
school-distriet  or  the  road-district  is  invested  with  a  corporate 
character  the  better  to  perform  within  and  for  the  locality  its 
special  function,  which  is  indicated  by  its  name.  It  is  but  an 
instrumentality  of  the  state,  and  the  state  incorporates  it  that 
it  may  the  more  effectually  discharge  its  appointed  duty.  So 
with  counties.  They  are  involuntary,  political,  or  civil 
divisions  of  the  state,  created  by  general  laws  to  aid  in  the 
administration  of  government.  Their  powers  are  not  uniform 
in  all  of  the  states,  but  these  generally  relate  to  the  adminis- 
tration of  justice,  the  support  of  the  poor,  the  establishment 
and  repair  of  highways,  all  of  whieh  are  matters  of  state,  as 
distinguished  from  local  concern.     They  are  purely  auxiliaries 

islature  to  make  the  people  of  a  county  liable  for  the  the  official  delinquen- 
cies of  the  county  commissioners ;  but  this  has  not  yet  been  done,  and  we 
think  such  liability  cannot  be  derived  from  the  relations  of  the  parties,  either 
on  the  principles  or  the  precedents  of  the  common  law."  See  also  Soper  v. 
Henry  Co.  26  Iowa,  264,  1868 ;  Treadwell  v.  Commissioners,  11  Ohio  St. 
190 ;  Arigell  &  Ames,  Sees.  14,  23,  24,  25. 

Speaking  of  the  powers  of  school-districts  and  of  their  officers,  Bell,  J.,  in 
Harris  v.  School  District,  8  Foster,  N.  H.  58,  61,  1853,  observes :  "  These 
little  corporations  have  sprung  into  existence  within  a  few  years,  and  their 
corporate  powers  and  those  of  their  officers  are  to  be  settled  by  the  con- 
structions of  the  courts  upon  a  succession  of  crude,  unconnected,  and  often 
experimental,  enactments."  "  School  districts,"  he  further  remarks—  refer- 
ring to  those  in  New  Hampshire  — '*  are  quasi  corporations  of  the  most  lim- 
ited powers  known  to  the  laws.  They  have  no  powers  derived  from  usage. 
They  have  the  powers  expressly  granted  to  them,  and  such  implied  powers 
as  are  necessary  to  enable  them  to  perform  their  duties,  and  no  more. 
Among  them  is  the  power  to  vote  money  for  specified  purposes,  and  the 
power  to  appoint  committees  '  to  carry  their  votes'  relative  to  those  pur- 
poses '  into  effect.'  The  district  may  clearly,  by  their  votes  for  building 
and  repairing  school-houses,  limit  the  expense  to  a  definite  sum ;  and  they 
may  limit  the  precise  repairs  or  the  exact  description  of  the  school-house 
-  to  be  built,  and  when  this  is  done  the  committee  (appointed  to '  carry  the  votes 
into  effect' )  cannot  bind  the  district  by  exceeding  those  limits.  These 
committees  are  special  agents  without  any  general  powers  over  the  affairs 
of  the  district,  and  their  powers  are  confined  to  a  special  purpose ;  and  no 
inference  can  be  drawn  from  the  general  nature  of  their  powers.  The  lia- 
bility of  such  powers  to  abuse,  furnishes  the  strongest  arguments  against 
their  existence,"  as  a  committee  might  load  the  district  with  debts,  though 
the  district  had  expressly  limited  their  authority.  See  also  Wilson  v. 
School  Dist.  32  N.  H.  118,  1855 ;  Foster  v.  Lane,  10  Foster,  305,  315 ;  Giles 
v.  School  Dist.  11  Fost.  304. 


CH.  II.]  CORPORATIONS    DEFINED    AND    CLASSIFIED.  33 

of  the  state ;  and  to  the  general  statutes  of  the  state  they  owe 
their  creation,  and  the  statutes  confer  upon  them  all  the  pow- 
ers they  possess,  prescribe  all  the  duties  they  owe,  and  impose 
all  liabilities  to  which  they  are  subject.  Considered  with  re- 
spectto  the  limited  number  of  their  corporate  powers,  the  bodies 
above  named  rank  low  down  in  the  scale  or  grade  of  corporate 
existence  ;  and  hence  have  been  frequently  termed  quasi  cor- 
porations. This  designation  distinguishes  them  on  the  one 
hand  from  private  corporations  aggregate,  and  on  the  other 
from  municpal  corporations  proper,  such  as  cities  or  towns 
acting  under  charters  or  incorporating  statutes,  and  which  are 
invested  with  more  powers  and  endowed  with  more  functions 
and  a  larger  measure  of  corporate  life.  It  will  appear  here- 
after that  many  of  the  courts  have  drawn  a  marked  line 
of  distinction  between  municipal  corporations  and  quasi  cor- 
porations, respect  to  their  liability  to  persons  injured 
by  their  neglect  of  duty ;  holding  the  former  liable,  with- 
out an-  express  statute  giving  the  action,  in  cases  in  which 
the  latter  are  not  considered  liable  unless  made  so  by  express 
legislative  enactment.  One  reason  often  given  for  the  dis- 
tinction is,  that  with  respect  to  local  or  municipal  powers 
proper  (as  distinguished  from  those  conferred  upon  the  munic- 
ipality as  a  mere  agent  of  the  state)  the  inhabitants  are  to  be 
regarded  as  having  been  clothed  with  them  at  their  request 
and  for  their  peculiar  and  special  advantage  and  that  as  to 
such  powers  and  the  duties  springing  out  of  them,  the  corpo- 
ration has  a  private  character,  and  is  liable,  on  the  same  prin- 
ciples and  to  the  same  extent  as  a  private  corporation.  This 
subject  will  be  fully  examined  in  its  appropriate  place,  and  is 
only  alluded  to  here  for  the  purpose  of  noting  the  distinction 
which  has  been  made  between  municipal  and  other  public 
corporations.  But  that  a  municipal  corporation  is  in  any  just 
view  a  private  corporation,  or  possesses  a  double  character, 
the  one  private  and  the  other  public,  although  often  asserted, 
is  only  true,  if  true  at  all,  in  a  very  modified,  if  not  inaccurate, 
sense.  In  their  nature  and  purposes,  municipal  corporations, 
however  numerous  and  complex  their  powers  and  functions, 
are  essentially  public. 
5 


84  MUNICIPAL    CORPORATIONS.  [CH.    II. 

§11.  The  New  England  Town.  —  In  the.  New  England 
states,  public  corporations  have,  in  many  respects,  a  peculiar 
character.  In  some  instances,  there  are  acts  incorporating 
cities,  giving  them  defined  powers  and  providing  a  special 
mode  of  government;  but  even  then  the  general  laws  in  rela- 
tion to  towns,  when  not  inconsistent  with  the  provisions  of  the 
local  act,  ordinarily  apply  to  the  places  specially  incorporated. 
In  the  New  England  town  proper,  the  citizens  administer  the 
general  affairs  in  person,  at  the  stated  corporate  or  town 
meetings,  and  through  officers  elected  by  themselves.1  The 
towns  are  charged  with  the  support  of  schools,  the  relief  of 
the  poor,  the  laying  out  and  repair  of  highways,  and  are  em- 
powered to  preserve  peace  and  good  order,  maintain  internal 
police,  and  direct  and  manage  generally,  in  a  manner  not 
repugnant  to  the  laws  of  the  state,  their  prudential  affairs; 
and  for  defraying  these  and  all  necessary  and  lawful  charges, 
they  may  levy  and  collect  taxes.  Speaking  generally,  the 
New  England  towns  are  organized  after  the  same  model;  and 
a  correct  notion  of  their  character  will  be  best  obtained  by 
reference  to  the  leading  statutory  provisions  in  Massachusetts 
respecting   them,   given   in    the    note.2     The    town   in   New 

1  In  towns,  according  to  the  use  of  the  word  in  the  New  England  states 
and  some  of  the  others,  the  citizens  administer  the  general  affairs  in  per- 
son, in  town  meetings.  In  cities,  this  is  done  by  means  of  a  mayor,  alder- 
men, and  council,  to  whom  the  citizens  entrust  most  of  the  legislative  and 
executive  powers  of  the  place.  State  v.  Glennon,  3  Kh.  Is.  276,  278,  per 
Staples,  C.  J.  In  New  England,  "town"  is  a  generic  term,  and  it  will  em- 
brace cities,  unless  the  contrary  appears  in  other  parts  of  the  statute  to  have 
been  the  intent  of  the  legislature.     lb. 

2  Summary  of  the  leading  statutory  provisions  in  Massachusetts  respecting 
towns :  — 

1.  As  to  powers  and  duties. —  They  are  "bodies  corporate,  with  all  the 
powers  heretofore  exercised  by  them,  and  subject  to  all  the  duties  to  which 
they  have  heretofore  been  subject."  Genl.  St.  1860,  Ch.  XVIII.  Sec.  1. 
"  Towns  may,  in  their  corporate  capacity,  sue  and  be  sued  in  the  name  of 
the  town."  lb.  Sec.  8.  They  may  hold  real  estate  and  personal  property 
"  for  the  public  use  of  the  inhabitants,"  and  also  "  in  trust  for  the  support 
of  schools  and  the  promotion  of  education  within  the  limits  of  the  town." 
lb.  Sec.  9.  They  "  may  make  contracts  necessary  and  convenient  for  the 
exercise  of  their  corporate  powers,"  and  may  dispose  of  their  corporate 
property.  lb.  Sees.  8,  9.  "  They  may,  at  legal  meetings,  grant  and  vote 
such  sums  as  they  judge  necessary,  for  the  following  purposes:    For  the 


CH.  II.]  CORPORATIONS    DEFINED    AND    CLASSIFIED.  35 

England,  while  somewhat  anomalous,  has  some  of  the  usual 
powers  of  a  regular  municipal  corporation,  and  some  of  the 
characteristics  of  the  county  organizations  in  many  of  the 
states.  The  New  England  town  affords,  perhaps,  an  example 
of  as  pure  a  democracy  as  anywhere  exists.  All  of  the  quali- 
fied inhabitants  meet  and  directly  act  upon  and  manage,  or 
direct  the  management  of,  their  own  local  concerns.  This 
form  of  government  was  adopted  from  a  very  early  period, 
and  is  firmly  adhered  to  and  deeply  cherished  by  the  people 
of  the  New  England  states.  The  result  has  demonstrated 
how  well  adapted  it  is  to  promote  the  well-being  of  the  com- 
munities that  for  so  long  a  space  of  time  have  thus  governed 
themselves.  The  remarkable  growth  and  prosperity  of  the 
New  England  states,  not  the  most  favored  by  nature,  and  the 
intelligence  and  character  of  the  people,  are  facts  known  to 
all ;  and  it  is  not  strange  that  these  results  should  be  attrib- 
uted, in  a  large  measure,  to  this  system  of  local  popular  gov- 

support  of  town  schools;  for  the  relief,  &c,  and  employment  of  the  poor; 
for  the  laying  out  and  discontinuing  and  repair  of  highways;  for  procuring 
the  writing  and  publishing  of  town  histories;  for  burial  grounds;  for  encour- 
aging the  destruction  of  noxious  animals;  for  all  other  necessary  charges  aris- 
ing therein."  lb.  Sec.  10.  "  May  make  necessary  by-laws,  not  repugnant  to 
the  laws  of  the  state,  for  directing  and  managing  the  prudential  affairs, 
preserving  the  peace  and  good  order,  and  maintaining  the  internal  police 
thereof."  lb.  Sec.  11.  But  such  by-laws  must,  before  taking  effect,  be  ap- 
proved by  the  Superior  Court,  or,  in  vacation,  a  judge  thereof.  76.  Sec.  14. 
They  are  binding  upon  all  within  the  limits  of  the  town,  strangers  as  well 
as  inhabitants.     lb.  Sec.  15. 

2.  Corporate  or  Toim  Meetings. — "  Every  male  citizen  of  twenty-one  years 
of  age  and  upwards  (except  paupers,  &c),  who  has  resided  within  the  state 
one  year,  and  within  the  town  in  which  he  claims  the  right  to  vote,  six 
months,  and  who  has  paid  a  state  or  county  tax,  &c,  shall  have  a  right  to 
vote  upon  all  questions  at  all  meetings  for  the  transaction  of  town  affairs, 
and  no  other  person  shall  be  entitled  to  vote.''  lb.  Sec.  19.  "  The  annual 
meeting  of  each  town  shall  be  held  in  February,  March,  or  April;  and 
other  meetings  at  such  time  as  the  selectmen  may  order.''  lb.  Sec.  20. 
Warrants  issue  for  all  meetings,  under  the  hands  of  the  selectmen,  directed 
to  constables  or  others,  who  notify  such  meeting  in  the  manner  prescribed 
by  the  by-laws  or  vote  of  the  town.  lb.  Sec.  21.  "  The  warrant  shall  ex- 
press the  time  and  place  of  the  meeting,  and  the  subjects  to  be  there  acted 
upon  ;"***"  and  nothing  acted  upon  shall  have  a  legal  operation 
unless  the  subject  matter  thereof  is  contained  in  the  warrant."  lb.  Sec.  22. 
If  selectmen  unreasonably  refuse  to  call  a  meeting,  any  justice  of  the  peace 
may  do  so  upon  the  application  of  ten  or  more  legal  voters  of  the  town. 


36  MUNICIPAL   CORPORATIONS.  [CH.    II. 

ernment.  But,  in  the  course  of  time,  many  of  the  towns,  or 
portions  thereof,  grew  to  be  large  and  populous,  and  the 
system  of  meetings  of  the  electors,  in  their  original  capacity, 
became  inconvenient  and  almost  impracticable.  When  the 
population  of  a  town  or  place  exceeds  eight  or  ten  thousand 
persons,  the  need  for  the  representative  system  is  urgently 
felt.  Accordingly,  in  the  New  England  states,  there  are  now, . 
in  addition  to  towns,  a  large  number  of  incorporated  cities, 
with  charters  or  constituent  statutes,  organized  upon  the 
usual  representative  model,  with  a  legislative  or  governing 
body,  and  an  executive  head  and  subordinate  officers.  The 
people  of  the  large  city  of  Boston,,  in  particular,  were  wedded 
to  the  town  system,  and  struggled  long  against  the  change  to 
the  representative  plan;  and  five  successive  times  between 
1784  and  1821  rejected  well-considered  schemes  for  a  city  gov- 
ernment. The  town  continued  to  be  governed  by  meetings 
of  the  electors  en  masse,  acting  through  boards  and  officers, 

lb.  Sec.  23.  Provision  is  made  for  moderating  and  conducting  the  meet- 
ing, lb.  Sees.  25-30.  Town  officers  are  elected  at  the  annual  meeting,  who 
serve  for  one  year,  and  until  others  are  chosen  and  qualified.  These  con- 
sist of  selectmen,  assessors,  treasurer,  constables,  who  are  ex-officio  collect- 
ors unless  others  be  specially  chosen ;  field  drivers,  fence  viewers,  surveyors 
of  lumber,  measurers  of  wood,  unless  selectmen  appoint,  "  and  all  other 
usual  town  officers."  lb.  Sec.  31.  Then  follows  a  variety  of  provisions  re- 
specting the  duties  of  these  several  officers,  and  the  manner  of  their  per- 
formance. In  addition,  there  are  acts  incorporating  and  establishing  cities. 
"The  laws  in  relation  to  towns,  where  not  inconsistent  with  the  general  or 
special  provisions  of  the  acts  establishing  cities,  apply  to  them;  and  cities 
are  subject  to  the  liabilities,  and  city  councils  have  the  powers  of  towns. 
The  mayor  and  aldermen  shall  have  the  powers  and  be  subject  to  the  lia- 
bilities of  selectmen,  &c,  if  no  other  provisions  are  made  in  relation 
thereto.'7  General  St.  1860,  Ch.  XIX.  166.  "The  marked  and  characteristic 
distinction  between  a  town  organization  (in  Massachusetts)  and  that  of  a  city 
is,  that  in  the  former  all  of  the  qualified  inhabitants  meet,  deliberate,  act, 
and  vote  in  their  natural  and  personal  capacities;  whereas,  under  a  city 
government,  this  is  all  done  by  their  representatives."  Per  Shaw,  C.  J.,  in 
Warren  v.  Charlestown,  2  Gray,  84,  101.  As  to  the  origin  and  power  of 
towns  in  Massachusetts,  consult  Commonwealth  v.  Eoxbury,  9  Gray,  451, 
1857,  opinion  of  Shine,  C.  J.,  476,  and  the  valuable  note  of  Mr.  (since  Judge) 
Gray,  pp.  503,  528 ;  Quincy's  Munic.  Hist,  of  Boston,  Ch.  I. ;  ante,  Chapter  I. 
Towns  were  not  expressly  authorized  to  sue  and  be  i-ued  until  1694,  nor  for- 
mally incorported  untiM785.  lb.  9  Gray,  511,  note  "G;"  2  Dane's  Ab. 
698;  Willard  v.  Newburyport,  12  Pick.  227,  231;  Spaulding  v.  Lowell,  23 
Pick.  77,  78. 


CH.  II.]  CORPORATIONS    DEFINED   AND    CLASSIFIED.  37 

until  the  place  had  forty  thousand  inhabitants,  of  whom  seven 
thousand  were  qualified  voters.  In  1822,  however,  the  legis- 
lature, at  the  desire  of  a  majority  of  the  voters,  granted  the 
place  a  city  charter,  by  which  it  was  provided'that  the  control 
of  its  affairs  should  be  in  a  mayor  and  city  council.  After 
this,  other  towns,  from  time  to  time,  made  the  change  from 
the  town  to  the  city  plan;  so  that,  as  before  observed,  we  have 
in  the  !N"ew  England  states  both  modes  of  local  administration. 
The  town  system  is  the  general  one ;  the  city,  or  representa- 
tive system,  is  the  exceptional  one,  and  is  confined  to  places 
of  compact  population  and  considerable  size.1 

1  No  city  was  incorporated  in  Massachusetts  until  after  the  amendment 
of  the  constitution  of  that  state  in  1820.  Per  Shaw,  C.  J.,  in  Warren  v. 
Charlestown,  2  Gray,  84.  After  referring  to  the  previous  attempts  in  1784, 
1785,  1791, 1804,  and  1815,  to  change  the  town  government  of  Boston,  Mr. 
Josiah  Quincy,  in  his  Municipal  History  of  Boston,  p.  28,  continues:  "In 
1821,  the  impracticability  of  conducting  the  municipal  interests  of  the 
place,  under  the  form  of  town  government,  became  apparent  to  the  inhab- 
itants. With  a  population  upwards  of  forty  thousand,  and  with  seven 
thousand  qualified  voters,  it  was  evidently  impossible  calmly  to  deliberate 
and  act.  When  a  town  meeting  was  held  on  any  exciting  subject,  in 
Faneuil  Hall,  those  only  who  obtained  places  near  the  moderator  could 
even  hear  the  discussion.  A  few  busy  or  interested  individuals  easily  ob- 
tained the  management  of  the  most  important  affairs,  in  an  assembly  in 
which  the  greater  number  could  have  neither  vo.ice  nor  hearing.  When  the 
subject  was  not  generally  exciting,  town .  meetings  were  usually  composed 
of  the  selectmen,  the  town  officers,  and  thirty  or  forty  inhabitants.  Those 
who  thus  came  were,  for  the  most  part,  drawn  to  it  from  some  official  duty 
or  private  interest,  which  when  performed  or  obtained,  they  generally 
troubled  themselves  but  little,  or  not  at  all,  about  the  other  business  of  the 
meeting.  In  assemblies  thus  composed,  by-laws  were  passed,  taxes,  to  the 
amount  of  one  hundred  or  one  hundred  and  fifty  thousand  dollars,  voted, 
on  statements  often  general  in  their  nature,  and  on  reports,  as  it  respects 
the  majority  of  voters  present,  taken  upon  trust,  and  which  no  one  had 
carefully  considered  except,  perhaps,  the  chairman.  In  the  constitution  of 
the  town  government  there  had  resulted,  in  the  course  of  time,  from  exi- 
gency or  necessity,  a  complexity  little  adapted  to  produce  harmony  in 
action,  and  an  irresponsibility  irreconcilable  with  a  wise  and  efficient  con- 
duct of  its  affairs.  On  the  agents  of  the  town  there  was  no  direct  check  or 
control ;  no  pledge  for  fidelity  but  their  own  honor  and  sense  of  character. 
The  prosperity  of  the  town  of  Boston,  under  such  a  form  of  government; 
the  few  defalcations  which  had  occurred ;  the  frequent,  and  often,  for  years, 
uninterrupted,  re-election  of  the  same  members  to  the  officiating  boards, 
are  conclusive  evidence  of  the  prevailing  high  state  of  morals  and  intelli- 
gence among  the  inhabitants."    After  referring  to  the  different  boards 


38  MUNICIPAL    CORPORATIONS.  [CH.    II. 

§  12.  The  character  of  towns  in  New  England,  and  in  what 
respects  they  differ  from  English  Municipal  Corporations,  ex- 
isting by  prescription  or  special  charter,  prior  to  the  legisla- 
tion by  parliament  in  1835,  before  mentioned,1  and  the  care  to 

among  which  the  executive  power  was  divided,  and  which  acted  inde- 
pendently of  each  other,  and  which  were  invested  with  the  expending 
power,  and,  in  effect,  with  exercise  of  the  whole  power  of  taxation,  Mr. 
Quincy  proceeds :  "A  conviction  of  the  want  of  safety  and  of  responsibility 
in  a  machine  thus  complicated  and  loosely  combined,  became,  at  length,  so 
general  that  the  inherited  and  inveterate  antipathy  to  a  city  organization 
began  perceptibly  to  diminish.  About  this  time,  also,  one  of  the  most 
common  and  formal  objections  to  a  city  organization  was  removed.  The 
constitution  of  Massachusetts,  which  was  passed  in  1780,  contained  no  ex- 
press authority  to  establish  a  city  organization ;  and,  in  every  attempt  to 
change  that  of  the  town,  it  never  failed  to  be  zealously  contended  that  the 
legislature  of  the  commonwealth  possessed  no  such  power.  But  by  the 
amendments  to  the  constitution,  made  by  the  convention  of  1820,  and 
adopted  by  the  people,  this  power  was  expressly  recognized.  The  ques- 
tion, therefore,  now  stood  on  its  own  merits,  and  independent  of  constitu- 
tional objections.  The  debates,  also,  which  occurred  in  this  convention 
had  a  tendency  to  open  the  eyes  of  the  inhabitants  to  their  own  interests; 
and  to  allay  some  of  the  long-cherished  prejudices  against  a  city  organiza- 
tion." In  1821  the  people  voted  to  make  the  change,  and  measures  were 
immediately  taken  to  obtain  the  sanction  of  the  legislature.  The  legisla- 
ture, on  the  23d  day  of  February,  1822,  passed  "  An  act  establishing  the  city 
of  Boston,"  commonly  called  "  the  city  charter.''  The  following  is  a  brief 
outline  of  the  principal  features  of  this  charter,  taken  from  Quincy's  Mu- 
nicipal History  of  Boston,  p.  41:  1.  The  title  of  the  corporation  to  be, 
"The  City  of  Boston.''  2.  The  control  of  all  its  concerns  is  vested  in  a 
mayor,  a  board  of  aldermen,  consisting  of  eight,  and  common  council,  of 
forty-eight  inhabitants,  to  be  called,  when  conjoined,  "  The  City  Council." 

3.  The  city  to  be  divided  into  twelve  wards.  The  mayor  and  aldermen 
and  common  council  to  be  chosen  annually,  by  ballot,  by  and  from  inhab- 
itants ;  four  of  the  common  council  from  and  by  those  of  each  of  the  wards. 

4.  The  city  clerk  to  be  chosen  by  the  city  council.  5.  The  mayor  to  receive 
a  salary.  His  duty — to  be  vigilant  and  active  in  causing  the  laws  to  be  ex- 
ecuted; to  inspect  the  conduct  of  all  subordinate  officers;  to  cause  careless- 
ness, negligence,  and  positive  violation  of  the  laws  to  be  prosecuted  and 
punished ;  to  summon  meetings  of  either  or  both  boards ;  to  communicate 
and  recommend  measures  for  the  improvement  of  the  finances,  the  police, 
health,  security,  cleanliness,  comfort,  and  ornament  of  the  city.  6.  The 
mayor  and  aldermen  are  vested  with  the  administration  of  the  police  and 
executive  power  of  the  corporation  generally,  and  with  specific  enumerated 
powers.  7.  All  other  powers  belonging  to  the  corporation  are  vested  in 
the  mayor,  aldermen,  and  common  council,  to  be  exercised  by  concurrent 
vote. 

1  Ante,  Chap.  I. ;  post,  Chap.  III. 


CH.  II. J  CORPORATIONS    DEFINED   AND    CLASSIFIED.  89 

be  observed  in  applying  the  English  cases  relating  to  such 
corporations  to  municipal  corporations  in  this  country,  are 
well  set  forth  by  the  learned  Chief  Justice  Perky,  in  delivering 
the  opinion  of  the  Supreme  Court  of  New  Hampshire,  in  an 
important  case  to  which  we  shall  again  have  occasion  to  al- 
lude. *  He  says :  "  It  is  to  be  observed  that  municipal  corpo- 
rations in  England  are  broadly  distinguished  in  many  impor- 
tant respects  from  towns  in  this  and  the  other  New  England 
states.  There  is  no  uniformity  in  the  powers  and  duties  of 
English  municipal  corporations.  They  were  not  created  and  es- 
tablished under  any  general  public  law,  but  the  powers  and 
duties  of  each  municipality  depended  upon  its  own  individual 
grant  or  prescription.  Their  corporate  franchises  were  held 
of  the  crown  by  the  tenure  of  performing  the  conditions  upon 
which  they  had  been  granted,  and  were  liable  to  forfeiture 
for  breach  of  the  conditions.  They  indeed  answered  certain 
public  purposes,  as  private  corporations  do  which  have  public 
duties  to  perform,  and  some  of  them  exercised  political  rights. 
But  they  are  not  like  towns  (with  us)  general,  political  and  ter- 
ritorial divisions  of  the  country,  with  uniform  powers  and 
duties,  defined  and  varied,  from  time  to  time,  by  general  leg- 
islation. Towns  (in  New  England)  do  not  hold  their  powers 
ordinarily  under  any  grant  from  the  government  to  the  indi- 
vidual corporation  ;  or  by  virtue  of  any  contract  with  the  gov- 
ernment, or  upon  any  condition,  express  or  implied.  They 
give  no  assent  in  their  corporate  capacity  to  the  laws  which 
impose  their  public  duties  or  fix  their  territorial  limits."  And 
referring  to  the  case  then  before  the  court,  he  added  :  "In  all 
that  is  material  to  the  present  inquiry,  municipal  corporations 
in  England  bear  much  less  resemblance  to  towns  in  this  country 
than  to  private  corporations  which  are  charged  with  the  per- 
formance of  public  duties,  and  for  these  reasons  the  English 
authorities  on  the  subject  are  but  remotely  applicable  to  the 
present  case." 

§  13.  The  distinctive  character  of  the  New  England  towns, 
and  particularly  the  limited  nature  of  their  powers,  will  be 
further  seen  by  a  brief  glance  at  the  coarse  of  judicial  decis- 

1  Eastman  v.  Meredith,  36  N.  H.  284,  290,  18581. 


40  MUNICIPAL   CORPORATIONS.  [CH.    II. 

ions  witii  respect  to  their  authority  to  make  contracts  and  to 
obtain  revenue.  Money  can  only  be  raised  by  them  for  the 
^purposes  expressed  by  the  statute,  and  for  expenses  incident 
to  such  purposes.  The  power  of  the  majority  is  wisely  limited 
by  law  to  the  objects  and  cases  which  are  clearly  provided  for 
and  defined  by  statute.1 

1  Stetson  v.  Kempton,  13  Mass.  272,  1816 ;  Parsons  v.  Goshen,  11  Pick. 
396,  1831.  "This  limitation,"  says  Mr.  Justice  Wilde,  with  great  truth, 
in  the  case  last  cited,  "  upon  the  power  and  authority  of  towns  to  enter 
into  contracts  and  stipulations,  is  a  wise  and  salutary  provision  of  law, 
not  only  as  it  protects  the  rights  and  interests  of  the  minority  of  the  legal 
voters,  but  as  it  may  not  unfrequently  prove  beneficial  to  the  interests 
of  the  majority,  who  may  be  hurried  into  rash  and  unprofitable  specula- 
tions by  some  popular  or  delusive  excitement,  to  the  influence  of  which 
even  wise  and  considerate  men  are  sometimes  liable.  A  town  in  its  corpo- 
rate capacity  will  not  be  bound,  even  by  the  express  vote  of  the  majority, 
to  the  performance  of  contracts  or  other  legal  duties,  not  coming  within  the 
scope  of  the  objects  and  purposes  for  which  they  are  incorporated." 
Anthony  v.  Adams,  1  Met.  284,  286,  1840,  per  Shaw,  C.  J. ;  quoted  and  fol- 
lowed in  Vincent  v.  Nantucket,  12  Cush.  105,  1853.  See  also  Norton  v. 
Mansfield,  16  Mass.  48 ;  Dill  v.  Wareham,  7  Met.  438,  1844  (contract  by 
the  town,  undertaking  to  transfer  the  right  of  taking  oysters  within  its 
limits). 

Whether  towns  in  Massachusetts  are  authorized  under  the  statute  to  make 
any  contract  for  the  payment  of  money,  which  they  are  not  authorized  to 
raise  money  to  discharge  by  a  tax  on  the  inhabitants,  does  not  seem  to  be 
settled  by  express  adjudication.  Bancroft  v.  Lynnfield,  18  Pick.  566,  1836, 
per  Shaio,  C.  J. ;  Tash  v.  Adams,  10  Cush.  252,  1852. 

"  The  inhabitants  of  every  town  in  this  state  "  —  Maine  —  says  Shepley, 
C.  J.,  in  Hooper  v.  Emery,  14  Maine,  (2  Shep.)  375,  1837,  "  are  declared  to 
be  a  body  politic  and  corporate  by  the  statute  :  but  these  corporations  de- 
rive none  of  their  powers  from,  nor  are  any  duties  imposed  upon  them  by, 
the  common  law.  They  have  been  denominated  quasi  corporations,  and 
their  whole  capacities,  powers,  and  duties  are  derived  from  legislative  enact- 
ments." See  also  Pittson  v.  Clark,  15  Maine,  460,  463 ;  Augusta  v.  Lead- 
better,  16  Maine,  45,  1839;  Estesa.  School  Dist.  33  Maine,  170,  1851 ;  Mitch- 
ell v.  Eockland,  45  Maine,  496,  504,  1858  ;  Salem  Mill  Dam  v.  Ropes,  6  Pick. 
23,  32 ;  School  Dist.  etc.,  v.  Wood,  13  Mass.  193,  1816,  per  Parker,  C.  J. ; 
Mower  v.  Leicester,  9  Mass.  247,  250,  1812. 

Where  the  legislature  has  prescribed  the  purposes  for  which  money  may 
be  raised  by  taxation,  it  cannot  be  raised  for  other  and  distinct  purposes. 
Nor  when  it  is  raised  and  collected  for  authorized  and  proper  purposes  can 
it  be  appropriated  to,  or  expended  upon  other  and  different,  objects.  This 
would  be  to  break  down  and  defeat  the  limitation.  Hence  towns  cannot 
give  away  or  distribute  per  capita  or  otherwise,  money  collected  by  taxation. 
Hooper  v.  Emery,  14  Maine  (2  Shep.),  375,  explaining  Ford  v.  Clough,  8 
Greenl.  334 ;  Davis  v.  Bath,  17  Maine,  141,  1840 ;  Pease  v.  Cornish,  19  Maine 


CH.  II.]  CORPORATIONS   DEFINED   AND   CLASSIFIED.  41 

Thus  a  town,  under  a  statute  which  restricts  them  to  raising 
money  to  provide  for  '^the  poor,  for  schools,  for  the  support  of 
public  worship,  and  other,  necessary  changes,'',  can  not  raise 
money,  even  in  the  time  of  war,  and  when  the  town  is  in  in>. 
mediate  danger  from  the  enemy,  for  the  payment  of  additional 
wages  to  the  drafted  and  enlisted  militia,  and  for  other  pur- 
poses of  defence.  This  is  not  a  corporate  duty,  but  the  duty  Of 
the  general  government.1  Nor  can  it  appropriate  money,  con- 
tract for,  or  levy  a  tax  to  aid  in  the  construction  of  a  road, 
which,  by  law,  is  to  be  made  at  the  expense  of  the  county,  and 
not  the  town.2  A  town  may,  it  is  said,  raise  money  to  meet 
ordinary  expenditures,  such  as  the  payment  of  officers,  the 
support  and  defence  of  actions,  the  expenses  incident  to  dis- 
charging duties  imposed  by  law,  looking  to  the  safety  and  con- 
venience of  the  citizens.  Thus  it  can  erect  a  town  or  city  hall, 
or  market  house,  but  not  a  theatre,  a  circus,  or  any  place  of 

(1  Appl.),  191,  1841 ;  Stetson  v.  Kempton,  13  Mass.  272  ;  Dillingham  v.  Snbw, 

5  Mass.  547 ;  Spaulding  v.  Lowell,  23  Pick.  71,  1830 ;  "Woodbury  v.  Hamilton, 

6  Pick.  101 ;  Cooley  v.  Granville,  10  Cush.  56. 

The  Vermont  statute  respecting  the  powers  of  towns  is  nearly  a  transcript 
of  that  of  Massachusetts.  The  Supreme  Court  of  Vermont  approves  of  the 
exposition  of  the  statute  given  by  the  Supreme  Court  of  Massachusetts  in 
Willard  v.  Newburyport,  12  Pick.  230 ;  Allen  v.  Taunton,  19  Pick.  485  ;  Torry 
v.  Milbury,  21  Pick.  64  ;  Spaulding  v.  Lowell,  23  Pick.  71 ;  Hardy  v.  Walt- 
ham,  3  Met.  163,  per  Isham,  J.,  in  Van  Sicklen  v.  Burlington,  27  Verm.  (1 
Wins.)  70.  For  discussion  of  powers  and  duties  of  selectmen  and  digest  of 
previous  decisions  in  New  Hampshire,  see  Carleton  v.  Bath,  2  Post.  (N.  H.) 
559.  Have  no  general  authority  to  bind  the  town  by  contract.  Andover  v. 
Grafton,  7  N.  H.  300  ;  but  are  confined  to  such  acts  as  are  necessary  to  the 
discharge  of  their  duties.  Sanborn  v.  Deerfield,  2  N.  H.  253.  Cannot,  ex- 
officio,  adjust  controversies  or  suits,  or  release  a  cause  of  action  ;  Carlton  v. 
Bath,  2  Foster,  559.  May  indemnify  town  officers  in  proper  cases ;  12  N. 
H.  278.  But  there  is  no  promise  implied  in  law  against  a  town  to  indem- 
nify selectmen  in  any  case,  for  damages,  which  they  have  been  compelled 
to  pay,  arising  out  of  the  discharge  of  official  duty ;  35  N.  H.  189.  Are 
suppposed  to  be  liable  to  the  corporation  for  gross  neglect  of  official  duty  ; 
Sanborn  v.  Deerfield,  2  N.  H.  253,  by  Woodbury,  J. 

1  Stetson  v.  Kempton,  13  Mass.  272, 1816,  where  the  phrase,  necessary  town 
charges,  is  construed  by  Parker,  C.  J.;  and  see  comment  of  Shaw,  C.  J.,  12 
Pick.  227,  230,  and  23  Pick.  74 ;  and  of  Dewey,  J.,  in  Allen  v.  Taunton,  19 
Pick.  485,  487  ;  18  ib.  566, 10  Cush.  57. 

2  Parsons  v.  Goshen,  11  Pick.  396,  1831 ;  Anthony  v.  Adams,  1  Met.  284, 
1840. 

6 


42  MUNICIPAL   CORPORATIONS.  [CH.    II. 

mere  amusement,  nor  even  a  statue  or  monument,  unless  in 
populous  and  wealthy  towns,  as  suitable  ornaments  to  public 
buildings  or  squares.1  So  towns  may  provide  for  the  support 
of  a  public  clock,  hay  scales,  burying  ground,  wells,  reservoirs, 
and  many  other  like  objects  which  relate  to  the  accommoda- 
tion and  convenience  of  the  inhabitants,  and  which  have  been 
placed  under  the  municipal  jurisdiction  of  towns  by  statute  or 
by  usage.2 

§  14.  Although  not  styled  such,  each  one  of' the  United  States, 
in  its  organized  political  capacity,  is  in  effect  a  public  corpora- 
tion. Corporations,  however,  as  the  term  is  commonly  used, 
does  not  include  states,  but  only  derivative  creations,  owing 
their  existence  and  powers  to  the  state  acting  through  its 
legislative  department.  Like  corporations,  however,  a  state, 
as  it  can  make  contracts  and  suffer  wrongs,  so  it  may,  for  this 
reason,  and  without  express  provision,  maintain,  in  its  corpo- 
rate name,  actions  to  enforce  its  rights  and  redress  its  injuries.3 
But  a  state  is  not  liable  to  be  sued  without  its  consent :  *  al- 
though it  is  not  unusual  for  states,  by  special  enactment,  to 
authorize  suits  to  be  brought  against  them,  but,  as  the  permis- 
sion is  voluntary,  they  may  prescribe  the  terms,  and,  unless  it 
impairs  the  obligation  of  contracts,  may  withdraw  the  consent 
at  pleasure.5     A  devise  to  a  state  for  any  object  which  it 

1  Stetson  v.  Kempton,  13  Mass.  272,  1816,  per  Parker,  C.  J. ;  'Allen  v.  Taun- 
ton, 19  Pick.  485,  487,  opinion  by  Dewey,  J.,  as  to  power  of  towns  in  Massa- 
chusetts ;  Spalding  v.  Lowell,  23  Pick.  71,  opinion  of  Shaw,  C.  J.,  on  same 
subject. 

2  Willard  v.  Newburyport,  12  Pick.  227,  230,  1831. 

8  Delafield  v.  Illinois,  2  Hill  (N.  Y.),  159,  162 ;  26  Wend.  192, 1841 ;  affirming, 
S.  C.  8  Paige,  531 ;  Indiana  v.  Woram,  6  Hill  (N.  Y.),  33,  1843;  these  cases 
hold  that  states  may  sue  as  plaintiff  in  the  state  courts ;  State  v.  Delesdenier, 
7  Texas,  76 ;  People  a.  Assessors,  1  Hill,  620.  The  governor  of  a  state,  as 
the  head  of  the  executive  department,  is  a  corporation  sole,  and  bonds 
made  payable  to  him  may  be  enforced  for  the  benefit  of  those  interested. 
Governor  v.  Allen,  8  Hump.  (Tenn.),  176, 1847  ;  Polk,  Governor,  v.  Plummer. 
2  ib.  500. 

1  Briscoe  v.  Bank,  11  Pet.  257,  321. 

a  Beers  v.  Arkansas,  20  How.  527, 1857  ;  Dodd  v.  Miller,v14  Ind.  433  ;  Au- 
ditor v.  Davies,  2  Pike  (Ark.),  494  ;  Ellis  v.  State,  4  Ind.  1  ;  State  v.  Trustees, 
5  Ind.  77.  The  supreme  court  of  the  United  States  has  original  jurisdiction 
in  cases  in  which  a  state  shall  be  a  party,  as  also  in  suit  between  states  ; 
Kentucky  v.  Dennison,  24  How.  66. 


CH.  II.  J  CORPORATIONS   DEFINED  AND   CLASSIFIED.  43 

may  properly  aid  or  provide  for,  is  valid.1  Extended  consid- 
eration of  the  powers  of  the  states,  and  of  their  relation  to  the 
United  States  and  to  each  other,  is  not  within  the  scope  of  the 
present  work,  which  is  limited  strictly  to  municipal  corpora- 
tions. 

1  McDonough  "Will  Case,  15  How.  367,  382,  1853. 


44  MUNICIPAL   CORPORATIONS.  [CH.  Illi 


CHAPTER  III. 

Creation,  and  Several  Kinds1  op  Municipal  Corporations. 

In  England. — Difference  between  Regal  and  Parliamentary  Corpo- 
rations.— Municipal  Corporations  Act  of  1835.. 

§  15.  In  England,  corporations  can  only  be  created  in  one 
of  two  ways:  1,  by  the  king's  charter;  2,  by  act  of  parlia- 
ment. They  exist  there,  however  —  1,  by  the  common  law; 
2,  by  prescription ;  3,  by  royal  charter ;  4,  by  authority  of 
parliament.  Corporations  at  common  law  are  those  which  de- 
rive their  existence  and  powers  from  immemorial  usage,  al- 
though they  may  have  had  their  origin  in  an  act  of  parliament 
or  royal  grant,  no  longer  discoverable.  Those  by  prescription 
pre-suppose  a  grant  by  charter  or  act  of  parliament,  which  has 
been  lost.  Into  corporations  created  by  regal  or  legislative 
grant  may  be  resolved  what  have  been  styled  corporations  by 
implication,  which  is,  where  a  body,  lawfully  constituted,  can- 
not carry  into  effect  its  purposes  without  attributing  to  it  a 
corporate  character.  The  franchise  of  being  a  corporation,  and 
the  right  to  exercise  corporate  powers  and  to  enjoy  corporate 
privileges,  can  be  claimed  in  no  other  way  than  as  above  stated. 
A  legal  sanction  to  the  corporate  character  is,  therefore,  abso- 
lutely necessary,  and  is  always  implied.1  The  distinction  be- 
tween corporations  deriving  their  existence  from  the  king's 
charter  and  those  which  derive  their  existence  from  parliament 
is  important.  *  A  royal  charter  is  a  written  instrument,  in  the 
form  of  letters  patent,  under  the  great  seal,  addressed  to  all  the 
subjects  of  the  realm,  containing  a  grant,  by  the  crown,  to  the 
persons  named,  of  the  franchises,  powers,  and  privileges  there- 
in mentioned.  A  charter  of  incorporation,  therefore,  is  the  writ- 
ten instrument  by  which  the  king  creates  the  corporate  body, 

1  Willc.  21 ;  Glover,  23  ;  Grant,  6,  7 ;  1  Kyd,  39 ;  Angell  &  Am.  Sec.  69 ; 
Bro.  Corp.  65 ;  Eastman  v.  Meredith,  36  N.  H.  284,  290, 1858,  per  Perky,  C.  J.; 
St.  Louis  ».  Allen,  13  Mo.  400 ;  Same  v.  Russell  9  ib.  503. 


CH.  III. J  CREATION  AND  GRADES  OF  PUBLIC  CORPORATIONS.      45 

names  it,  defines  its  objects,  and  confers  its  powers.  Unless 
restricted  in  the  charter,  all  of  the  common  law  incidents  of  a 
corporation  attach  to  it,  but  no  corporation  can  pursue  objects 
not  warranted  by  its  charter.  The  charter  is  the  organic  act 
which  gives  to  the  corporation  both  its  existence  and  its  pecu- 
liar character. 

The  king's  charter  may  confer  upon  tbe  corporation  it  insti- 
tutes all  the  usual  and  ordinary  powers  of  a  corporate  body, 
but  it  cannot  invest  such  a  body  with  extraordinary  powers, 
such  as  proceeding  in  a  manner  different  from  the  common 
law,  or  punishing1  by  forfeiture  or  imprisonment,  or  conferring 
an.  exclusive  right  of  trading.  When  the  king  grants  clauses 
which  are  illegal,  they  are  void,  and  if  clearly  illegal  and  not 
confirmed  by  parliament,  no  length  of  time  or  usage  will  make 
such  clauses  valid.  But  parliament,  in  the  fullness  of  its  pow- 
er, may  grant  to  corporations  which  it  erects  such  powers,  or- 
dinary and  extraordinary,  as  it  deems  proper ;  and  it  may  do, 
as  indeed  it  has  often  done,  confirm  clauses  in  royal  charters 
which  were  void,  because  beyond  the  king's  power  to  grant. 

The  king  cannot  incorporate  a  body  of  men  without  their  as- 
sent. Until  his  charter  has  been  accepted,  it  is  inoperative. 
When  once  accepted,  the  acceptance  is  irrevocable.  The  ac- 
ceptance must  be  by  those  to  whom  it  is  addressed ;  and  it  is 
held  that  a  valid  acceptance  may  be  made  by  a  majority  of  the 
grantees.  The  charter  must  be  accepted  in  toto,  or  not  at  all, 
for  there  can  be  no  partial  acceptance  without  the  assent  of  the 
crown,  which  must  be  shown  by  matter  of  record.  If  the  cor- 
poration be  a  new  one,  acceptance  of  part  of  the  charter  is 
taken  as  acceptance  of  all.  Acceptance  may  be  shown  by  user 
—  by  acting  under  it,  as  well  as  by  the  formal  action  of  the 
corporate  body.  After  acceptance,  the  crown  cannot  resume  the 
grant,  or  dissolve  or  destroy  the  corporation,  without  the  con- 
sent' of  the  grantees  or  their  successors.  The  crown,  at  com- 
mon law,  can  create  a  corporation  for  municipal  government 
in  any  place  where  there  is  not,  at  the  time,  an  existing  cor- 
poration of  the  same  kind,  but  there  cannot  be,  concurrently, 
two  corporations,  for  the  same  place,  having  the  same  or  sim- 
ilar powers  or  jurisdiction.  But  these  limitations  upon  the 
power  of  the  crown  do  not  apply  with  respect  to  municipal 


46  MUNICIPAL   CORPORATIONS.  [CH.  III. 

corporations  created  by  parliament.  Its  power  is,  legally  speak- 
ing, illimitable.  It  may  create,  and  abolish,  and  change,  at  its 
pleasure,  with  or  without  the  assent  of  the  people  or  corpora- 
tion to  be  thereby  affected.  It  may  change  royal  charters,  but 
parliamentary  corporations  cannot  be  affected,  without  the  con- 
sent of  parliament,  by  charters  granted  by  the  crown.  Except 
as  to  the  extent  of  powers  which  may  be  conferred,  a  parlia- 
mentary corporation  is,  at  common  law,  similar  to  that  which 
is  created  by  the  crown.1 

§  16.  Prior  to  1835,  many  of  the  towns,  boroughs,  and 
cities  of  England  were  incorporated  in  one  of  the  ways  men- 
tioned; that  is  to  say,  there  were  in  them  bodies  corporate, 
established  for  the  local  government  thereof.  There  was  no 
uniformity  in  the  constitution  or  powers  of  these  corporate 
bodies.  The  corporation  proper  was  not  the  town  or  place, 
but  a  corporate  body  constituted  within  it,  with  powers  and  juris- 
diction, more  or  less  extensive,  to  govern  the  inhabitants. 
These  bodies  were  established  at  different  times,  and  with  dif- 
ferent motives.  The  first  distinct  recognition  of  a  municipal 
corporation  was  in  the  18th  of  Henry  VI.  (A.  D.  1439), 
with  reference  to  Kingston-upon-Hull,  which  had  an  express 
charter  of  incorporation  granted  to  it,  for  the  first  time,  in 
that  year.  Charters  had  previously  been  granted  to  it  by 
different  sovereigns,  at  various  times,  giving  it  various  priv- 
ileges, but  they  did  not  incorporate  the  place,  nor  was  it  in- 
corporated until  the  charter  of  18th  Henry  VL,  which  is 
the  first  that  uses  terms  of  incorporation.2  Subsequently 
such  corporations  were  erected  from  time  to  time,  each  with 
its  peculiar  constitution,  depending  on  the  provisions  of  the 
charter  or  prescriptive  usage.  The  constitution  of  the  cor- 
porations was  so  various,  and  is  so  different  from  the  Ameri- 
can model,  that  it  requires  care  to  obtain  an  accurate  idea  of 
it.  For  illustration,  we  will  take  a  simple  form,  viz. :  where 
by  charter  or  prescription  the   corporation   consists   of  the 

1  Authorities  last  cited.  Respecting  the  authority  of  the  crown  to  grant 
charters  to  incorporate  towns,  since  the  General  Municipal  Corporations 
Act  of  1835,  see  Butter  v.  Chapman,  8M.4W.  1;  Reg.  v.  Boucher,  3  Q.  B. 
654. 

»  Glover,  16. 


CH.  III.]    CREATION  AND  GRADES  OF  PUBLIC  CORPORATIONS.  47 

mayor,  aldermen,  and  commonalty  of  a  town.  Here  there 
are  three  ranks,  classes,  or  parts  :  1,  the  mayor  or  head  offi- 
cer; 2,  the  aldermen,  the  number  of  whom  is  definite,  being 
fixed  by  the  charter,  or  by  prescriptive  usage;  3,  the  common- 
alty, that  is,  the  common  freemen,  whose  number  is  indefinite, 
and  whose  rights,  in  the  course  of  time,  were  largely  usurped 
or  destroyed.  These  three  classes  were  denominated  the 
integral  parts  of  the  corporation,  and  no  corporation  was  com- 
plete (except  it  be  otherwise  provided  by  the  charter)  unless 
the  mayor,  or  head  officer,  a  majority  of  the  definite  class 
(that  is,  a  majority  of  the  aldermen),  and  some  members  of  the 
indefinite  class,  or  commonalty,  be  in  existence.  Hence, 
during  a  vacancy  in  the  office  of  mayor,  no  valid  corporate 
act  can  be  done  except  to  elect  another,  since  without  a  mayor 
the  corporate  body  is  incomplete.  Hence,  also,  at  every  cor- 
porate meeting  it  was  essential,  at  common  law,  that  there 
should  be  present  the  mayor,  or  head  officer,  whose  duty  it 
was  to  preside,  a  majority  of  each  definite  integral  class,  and 
some  members  of  each  indefinite  class,  if  there  be  more  than 
one  such  class. 

In  the  course  of  time  great  abuses  had  crept  into  these 
bodies,  which  parliament  had  frequently  been  obliged  to  re- 
dress. Complaints  of  grievances  were  universal,  and  misrule, 
confusion,  and  internal  disputes  so  general  that  the  municipal 
system  of  government  fell  into  great  and  deserved  disrepute. 
As  a  measure  of  reform,  the  Municipal  Corporations  Act  of 
5  and  6  Will.  IV.  Chap.  LXXVI.  was  devised  and  enacted.1 

1  The  reformed  house  of  commons  presented  an  address  to  William  IV. 
requesting  the  appointment  of  a  commission  to  inquire  into  the  state  of  the 
municipal  corporations  in  England  and  Wales.  The  commission  which 
was  appointed  made  a  thorough  examination  of  the  condition  of  the  vari- 
ous boroughs,  and  their  report  disclosed  abuses  and  defects  which  it  seems 
marvellous  that  any  spirited  people  so  long  endured.  See  Chapter  I.  ante, 
Sec.  8. 

From  various  sources  of  information  the  commission  ascertained  the  ex- 
istence of  two  hundred  and  forty-six  corporations,  in  England  and  Wales, 
exercising  municipal  functions.  The  population  of  these  corporate  places 
exceeded  two  millions  of  people.  Some  of  these  corporations  claimed  to 
act  under  prescriptive  custom,  but  most  of  them  under  several  charters, 
forming  a  continued  series  from  a  very  early  date,  but  generally  under 
charters  granted  from  the  reign  of  Edward  I.  down  to  the  reign  of  George 


48  MUNICIPAL   CORPORATIONS.  [CH.  III. 

"I  cordially  concur,"  said  the  king,  from  the  throne,  "in  this 
important  measure,  which  is  calculated  to  allay  discontent,  to 
promote  peace  and  union,  and  to  procure  for  those  communi- 
ties the  advantages  of  responsible  government."  This  act 
organizes  all  of- the  municipal  corporations  of  England  and 
Wales  upon  a  uniform  model.  It  does  not  altogether  destroy 
their  previously  existing  lawful  corporate  powers,  but  it  does 
sweep  away  all  laws,  statutes,  charters,  and  usages  inconsist- 
ent with  or  contrary  to  its  provisions.  It  defines  who  shall 
be  burgesses  or  citizens,  making  the  right'  essentially  depend 
upon  occupancy  of  houses  or  shops  within  the  borough,  and 
the  payment  of  taxes  for  the  relief  of  the  poor.     These  bur- 

IV.  inclusive.  The  number  of  corporators  stated  to  be  definite,  in  fifty 
boroughs,  varied  in  most  cases  from  under  ten  to  thirty,  and  those  indefi- 
nite, in  one  hundred  and  sixty-two  boroughs,  varied  from  twelve  to  five 
thousand,  but  usually  averaged  from  fifty  to  two  hundred  corporators.  The 
titles  to  freedom,  or  citizenship,  generally  comprehended  those  arising  from 
birth,  servitude,  marriage,  purchase,  gift,  or  election.  The  governing 
bodies  were  formed  by  the  close  and  corrupt  system  of  self-election,  in  a 
great  majority  of  the  municipalities.  The  corporate  officers,  such  as  the 
mayor,  or  other  head  of  the  corporation,  the  recorder — frequently  unpro- 
fessional— and  the  town  clerk,  were  appointed  by  the  self-elected  govern- 
ing body  from  its  own  immaculate  conclave..  Most  of  the  municipalities 
possessed  exclusive  criminal  jurisdiction,  extending  to  the  trial  of  felonies 
and  all  other  offences,  whereas  many  appear  never  to  have  had  any'  crim- 
inal jurisdiction.  Several  boroughs  had  civil  jurisdiction  extending  to  the 
decision  of  all  actions;  some  extending  to  the  decision  of  personal  and 
mixed  actions ;  others  to  the  decision  of  personal  actions ;  while  in  a  great 
number,  no  civil  jurisdiction  appeared  ever  to  have  existed.  The  property, 
in  some  few  boroughs,  was  trivial,  but  the  revenue  generally  averaged  from 
5002  to  1,0002  in  each,  while  in  some  the  property  exceeded  50,O00Z  per  an- 
num. In  a  few  towns  corporate,  the  accounts  were  printed  for  distribution 
and  audited  publicly ;  but  in  most  cases,  the  accounts  were  neither  duly 
kept,  nor  audited,  nor  published,  besides  being  inaccurate  and  in  a  gener- 
ally unsatisfactory  state.  The  annual  income  of  these  municipal  corpora- 
tions amounted  to  about  366,0002,  and  the  expenditure  to  377,0002,  while 
the  debt  in  one  hundred  and  thirty-three  exceeded  the  sum  of  two  mil- 
lions sterling.  Throughout  the  course  of  the  investigation  of  the  commis- 
sioners there  were  perceptible  the  same  complaints — of  magistrates  ill 
qualified,  by  education  and  habits,  for  their  situations,  generally  partial, 
and  sometimes  corrupt;  of  courts,  which  might  be  made  the  instruments  of 
much  local  advantage,  falling  into  disuse  through  defects  of  their  original 
constitution  and  their  recent  mal-administration ;  of  juries  improperly  se- 
lected by  reason  of  notorious  party  bias ;  of  revenue  misapplied ;  of  debt 
contracted  and  of  property  alienated ;  of  the  absence  of  all  accounts  and 


CH.  III. J  CREATION  AND  GRADES  OF  PUBLIC  CORPORATIONS.      49 

gesses  or  citizens  elect,  from  time  to  time,  a  fixed  number  of 
proper  persons  to  be  councillors,  and  tbe  council  (composed  of 
tbe  mayor,  aldermen,  and  councillors)  elect,  from  qualified 
persons,  the  aldermen,  and  also  the  mayor  and  the  ministe- 
rial and  inferior  corporate  officers.  "  The  council"  is  the  gov- 
erning body  of  the  corporation,  and  its  most  important 
powers   are   defined   by  various  acts  of  parliament.     It  will 

the  denial  of  all  accountability  by  certain  corporations;  of  the  insufficiency 
of  the  police,  the  neglect  of  paving  and  lighting,  and  the  want  of  those 
municipal  accommodations  for  which-  the  public  property  committed  in 
trust  to  the  corporation  would,  if  duly  administered,  be  amply  sufficient  to 
provide.  Having  given  a  general  view  of  the  ordinary  constitution  of  the 
various  municipalities,  the  commissioners  next  proceeded  to  specify  some 
of  their  defects.  The  most  common  and  most  striking  defect  in  the  constitu- 
tion of  the  municipal  corporations  was,  that  the  corporate  bodies  existed  inde- 
pendently of  the  communities  among  which  they  were  found.  The  corporators 
looked  upon  themselves,  and  were  considered  by  the  inhabitants,  as  sepa- 
rate and  exclusive  bodies;  they  had  powers  and  privileges  within  the 
towns  and  cities  from  which  they  were  named,  but,  in  most  places,  all 
identity  of  interest  between  the  corporation  and  the  inhabitants  disap- 
peared. That  was  the  case  even  where  the  corporation  included  a  large 
body  of  inhabitant  freemen.  It  appeared  in  a  more  striking  degree  as  the 
powers  of  the  corporation  had  been  restricted  to  smaller  numbers  of  the 
resident  population,  and  still  more  glaringly  when  the  local  privileges  had 
been  conferred  on  non-resident  freemen,  to  the  exclusion  of  the  inhabitants 
to  whom  they  rightfully  ought  to  belong.  The  privilege  of  electing  members 
of  parliament  being  that  which,  before  the  passing  of  the  reform  act,  con- 
ferred upon  the  self-elected  governing  bodies  of  close  corporate  towns  their 
principal  importance,  and  the  rewards  for  political  services  which  the 
patron  was  accustomed  to  distribute  among  them,  caused  this  function  to 
be  considered,  in  many  places,  as  the  sole  object  of  their  institution.  The 
power  so  monopolized  and  employed  in  a  mode  unsuitable  to  the  altered 
circumstances  of  the  times,  led  to  various  abuses  of  the  system.  The  cus- 
tom of  keeping  the  number  of  corporators  as  low  as  possible,  may  be 
referred  to  the  wish  for  preserving  the  parliamentary  franchise,  rather 
than  to  the  desire  of  monopolizing  the  municipal  authority,  which  had 
been  coveted  only  as  a  means  of  securing  the  other  and  more  highly 
prized  privilege.  A  great  number  of  corporations  was  preserved  solely  as 
political  engines,  and  the  towns  to  which  they  belonged  derived  no  benefit, 
but  often  much  injury,  from  their  existence.  To  maintain  the  political 
ascendancy  of  a  party,  or  the  political  influence  of  a  family,  was  the  one 
end  and  object  for  which  the  powers  entrusted  to  a  numerous  class  of  these 
bodies  have  been  exercised.  This  object  was  systematically  pursued  in  the 
admission  of  freemen,  resident  or  non-resident;  in  their  election  of  munici- 
pal functionaries  for  the  council  or  the  magistracy ;  in  the  appointment  of 
subordinate  officers  and  the  local  police;  in  the  administration  of  charities 
7 


50  MUNICIPAL   CORPORATIONS.  [CH.  III. 

thus  be  perceived  that  the  original  power  is  in  the  burgesses 
or  citizens,  and  that  the  act  adopts  the  representative  syi-tem, 
and '  proceeds  upon  the  idea  that  a  substantial  interest  in  the 
incorporated  place,  which  is  made  necessary  in  order  to  be  a 

entrusted  to  the  municipal  authorities;  in  the  expenditure  of  the  corporate 
revenue;  and  in 'the  management  of  the  corporate  property.  The  most 
flagrant  abuses  arose  .from  this  perversion  of  municipal  privileges  to  polit- 
ical objects.  Thus  the  inhabitants  had  to  complain,  not  only  that  the 
election  of  their  magistrates  and  other  municipal  functionaries  was  made 
by  an  inferior  class  of  themselves,  or  by  persons  unconnected  with  the 
town,  but  also  of  the  disgraceful  practices  by  which  the  magisterial  office 
was  frequently  obtained;  while  those  who,  by  character,  residence,  and 
property,  being  best  qualified  to  direct  and  control  its  municipal  affairs, 
were  excluded  from  any  share  in  the  elections  or  management.  The  ex- 
clusive and  party  spirit  belonging  to  the  whole  corporate  body,  appeared  in 
a  still  more  marked  manner  in  the  councils  by  which,  in  most  cases,  it  was 
governed.  These  councils  were  usually  self-elected,  and  held  their  offices 
for  life.  They  were  commonly  of  one  political  party,  and  their  proceedings 
were  mainly  directed  to  secure  and  perpetuate  the  ascendancy  of  the  party 
to  which  they  belonged.  Individuals  of  adverse  political  opinions  were,  in 
most  cases,  systematically  excluded  .from  the  governing  body.  These 
councils,  which  embodied  the  opinions  of  a  single  party,  were  entrusted 
with  the  nomination  of  magistrates,  of  the  civil  and  criminal  judges,  often 
of;  the  superintendents  of  police,  and  were,  or  ought  to  have  been,  the 
leaders  in  every  measure  that  concerned  the  interests  and  prosperity  of 
xthe  town.  So  far  from  being  the  representatives  either  of  the  population 
or  of  the  property  of  the  town,  they  did  not  represent  even  the  privileged 
class  of  freemen;  and  being  elected  for  life,  their  proceedings  were  un- 
checked by  any  feeling  of  responsibility.  In  conclusion,  the  commission- 
ers reported  that  there  prevailed  amongst  the  inhabitants  of  a  great 
majority  of  the  incorporated  towns  a  general  and  a  just  dissatisfaction  with 
their  municipal  councils,  whose  powers  were  subject  to  no  proper  control, 
whoste  acts  and  whose  proceedings  being  secret,  were  unchecked  by  the 
influence  of  public  opinion;  a.  distrust  of  the  municipal  magistracy,  tainting 
with  suspicion  the  local  administration  of  justice,  and  often  accompanied 
with  contempt  of  the  persons  by  whom  the  law  was  administered ;  a  dis- 
content under  the  burdens  of  local  taxation,  while  revenues  that  ought  to 
be  applied  for  the  public  advantage  were  diverted  from  their  legitimate 
use,  and  sometimes  wastefully  bestowed  for  the  benefit  of  individuals, 
sometimes  squandered  for  purposes  injurious  to  the  character  and  morals 
of  the  people.!  The  commissioners  therefore  felt  it  their  duty  to  represent 
to  his  majesty,  that  the  municipal  corporations  of  England  and  Wales 
neither,  possess  nor  deserve  the  confidence  or  respect  of  his  majesty's  sub- 
jects, and  that  a,  thorough  reform  must  be  effected  before  they  can  become, 
what  they  ought  to  be,  useful  and  efficient  instruments  of  local  government. 
Glover's  Historical  Summary  of  the  Corporate  System  of  Great  Britain  and 
Ireland,  pp.  38  to  45.  The  result  was  the  Municipal  Corporations  Act  of  5 
and  6  Will.  IV.  Chap.  LXXVI. 


CH.  III.]    CREATION  AND  GRADES  OF  PUBLIC  CORPORATIONS.  51 

burgess  or  citizen,  will  induce  care  in  the  selection  of  coun- 
cillors, and  that  frequent  elections  will  prove  the  most  effect- 
ual check  .  on  those  entrusted  with  the  administration  of  the 
municipal  authority,  which  is  carefully  limited  and  defined.  . 

The  act  of  1835,  with  some  amendments,  constitutes  the  body 
of  the  existing  English  municipal  corporations  system,  and  its 
leading  provisions  are  so  important  to  be  understood  in  the 
study  and  application  of  the  English  cases  to  questions  arising 
in  this  country,  and  contain  so  much  of  interest  to  the  lawyer, 
the  legislator,  and  the  municipal  inquirer,  that  they  are  given 
or  referred  to  in  the  note.1 

1  Municipal  Corporations  Act  of  5  and  6  Will.  IV.  Cap.  76,  passed  September 
9,  1835. —  Name,  &c. — •  This  act  commences  by  reciting,  that  "  Whereas,  di- 
vers bodies  corporate  at  sundry  times  have  been  constituted  within  the 
cities,  towns,  and  boroughs  of  England  and  Wales,  to  the  intent  that  the 
same  might  forever  be  and  remain  well  and  quietly  governed ;  and  it  is 
expedient  that  the  charters  by  which  said  bodies  corporate  are  constituted, 
should  be  altered  in  the  manner  hereinafter  mentioned ;  be  it  therefore 
enacted,  that  so  much  of  all  laws,  statutes,  and  usages,  and  so  much  of  all 
royal  and  other  charters,  now  in  force,  relating  to  the  several  boroughs 
named  in  schedules  (A  andB)  annexed,  as  are  inconsistent  with,  or  contra- 
ry to,  this  act,  shall  be,  and  the  same  are  hereby,  repealed  and  annulled '?. 
(Sec.  1),  with  the  reservation  of  certain  rights,  beneficial  exemptions,  and 
franchises  to  the  freemen  or  citizens  (Sees.  2-5).  These  schedules  contain 
an  alphabetical  list  of  all  the  incorporated  boroughs,  with  the  number  of 
wards,  number  of  aldermen,  and  number  of  councillors,  and  style  of  the 
corporate  body  in  each ;  thus  :  "  Bath  —  Seven  wards,  fourteen  aldermen, 
forty -two  councillors."  Corporate  Name  —  "  Mayor,  Aldermen,  and  Citizens 
of  the  City  of  Bath."  If  it  be  a  borough  instead  of  a  city,  the  word  "  Bur- 
gesses "  is  used  instead  of  "  Citizens."  The  act  provides  that  the  body  corpo- 
rate in  each  of  said  places  "  shall  take  and  bear  the  name  of  the  Mayor, 
Aldermen,  and  Burgesses  [or  Citizens,  in  case  of  a  city]  of  such  borough, 
and  by  that  name  shall  have  perpetual  succession,  and  shall  be  capable:  in 
law,  by  the  council  hereinafter  mentioned  of  such  borough  to  do,"  &c.  (Sec.  6). 

Membership. — Before  the  passage  of  the  act  under  consideration,  the  qual- 
ifications for  members  or  officers  of  municipal  corporations  depended  upon 
the  charter,  usage,  or  by-laws  of  the  particular  corporation  —  the  usual 
qualifications  being  that  the  person  claiming  to  be  admitted  to  the  freedom 
of  the  corporate  town  should  be  the  son  of  a  freeman,  or  should  have  served 
an  apprenticeship  to  a  freeman,  or  (in  some  instances)  married  his  daugh- 
ter, or  acquired  the  privilege  by  gift  or  purchase  ;  but  this  act  provides  that 
hereafter  "  no  person  shall  be  elected,  made,  or  admitted  a  burgess  or  free- 
man of  any  borough  by  gift  or  purchase  "  (Sec.  3).  It  fixes  the  qualifications 
of  burgesses  or  citizens,  thus  :  "  Every  male  person,  of  full  age,  who  Shall 
have  occupied  any  house,  warehouse,  counting-house,  or  shop,  within  any 
borough  "  for  three  years,  "  and  during  the  time  of  such  occupation  been 


52  MUNICIPAL    CORPORATIONS.  [CH.  III. 

In  the  United  States. 

§  17.  The  proposition  which  liis  at  the  foundation  of  the 
law  of  corporations  in  this  country  is,  that  here,  all  corpora- 
tions, public  and  private,  exist  and  can  exist  only  by  virtue  of 
express  legislative  enactment,  creating,  or  authorizing  the  crea- 
tion, of  the  corporate  body.  Legislative  sanction  is  absolutely 
essential  to  lawful  corporate  existence.  That  a  corporation 
may  here  exist  by  prescription,  and  its  existence  be  established 
by  long  and  undisputed  user  of  corporate  powers  may  (as  the 
cases  hereafter  referred  to  will  show)  be  true,  but  this  prescrip- 
tion and  user  suppose  a  legislative  grant.     Instances  of  pre- 

an  inhabitant  householder  within  the  borough,  or  within  seven  miles  of  the 
borough,  shall,  if  duly  enrolled,  be  a  burgess  of  such  borough  and  a  member  of 
the  body  corporate  of  the  mayor,  aldermen,  and  burgesses  of  such  borough,  pro- 
vided he  shall  have  been  rated  in  respect  to  the  premises  so  occupied  by 
him  to  all  rates  made  for  the  relief  of  the  poor  within  the  parish"  (Sec.  9). 
Such  resident  occupiers  and  tax-payers,  only,  are  members  of  the  corporate 
body  of  the  place  ;  all  the  other  inhabitants  are  no  part  of  the  municipal 
corporation,  though  subject  to  its  government. 

Councilloks,  How  Chosen,  &c. — Upon  the  first  day  of  November,  in  every 
year,  the  burgesses  so  enrolled  in  every  borough  shall  openly  assemble,  and 
.elect  from  the  persons  qualified  to  be  councillors  [who  must  have  the  quali- 
fications of  a  burgess,  and  also  increased  pecuniary  and  rating  qualifications], 
the  councillors  of  the  borough  "  (Sec.  30),  of  whom  one-third  part  go  out  of 
office  annually.  The  elections  are  held  before  the  mayor  and  assessors,  and 
the  mode  of  voting  (which  is  exactly  the  opposite  of  the  ballot  in  America) 
is  by  delivering  to  the  officers  of  election  a  voting-paper  containing  the 
name  and  abode  of  the  person  voted  for,  and  signed  with  the  name  of  the 
voter.  It  is  thus  seen  that  the  burgesses  elect  the  councillors,  whose 
qualifications  are  fixed  by  the  statute,  and  whose  number  in  each  incorpo- 
rated place  is  definite. 

Aldermen,  How  Chosen. —  On  the  ninth  day  of  November,  in  every  third 
succeeding  year,  the  council,  for  the  time  being,  are  directed  to  elect,  "from 
the  councillors,  or  from  persons  qualified,  to  be  councillors,  the  aldermen  of  the 
borough,"  who  are  one-third  in  number  of  the  councillors  (Sec.  25).  The 
manner  of  election  is  prescribed,  namely,  by  every  member  of  the  council 
delivering  to  the  mayor,  or  chairman,  a  voting-paper  signed  by  the  member 
voting,  which  the  mayor,  or  chairman,  is  directed  openly  to  read.  (Act  7 
Will.  IV.  and  1  Vict.  Chap.  LXXVIII.  Sec.  14 ;  16  and  17  Vict.  Chap. 
LXXIX.  Sec.  13.) 

Mayok,  How  Chosen. —  At  the  meeting  of  the  council,  to  be  held  on  the 
ninth  day  of  November,  each  year,  the  council  are  directed  to  elect,  out  of  the 
aldermen  or  councillors,  a  fit  person  to  be  the  mayor,  who  shall  continue  in 
oflice  for  one  year  (Sec.  49)  and  until  his  successor  shall  have  accepted  and 
qualified  (6  and  7  Will.  IV.  Chap.  CV.  Sec.  4). 


CH.  III.]    CREATION  AND  GRADES  OE  PUBLIC  CORPORATIONS.  53 

scriptive  corporations,  with  us,  are  rare  and  exceptional.  But 
corporations,  public  and  private,  by  virtue  of  direct  legislative 
authorization,  are  being  created  in  such  vast  numbers  as  to 
constitute  one  of  the  most  marked  and  important  features  of 
the  present  age.  Speaking  of  "  corporations  by  statute,"  in 
England,  Mr.  Willcock  says  that  "  the  legislature  has  not  often 
exercised  the  power  of  creating  municipal  corporations,  be- 
cause it  has  been  esteemed  a  flower  of  the  prerogative."  l  This 

Who  Compose  the  Council,  &c. —  The  mayor,  the  aldermen,  and  the 
councillors,  for  the  time  being,  constitute  "  the  council "  of  the  borough 
(Sec.  25).  The  council,  as  we  have  seen,  elect  the  mayor  and  the  aldermen, 
and  it  also  appoints  the  clerk,  treasurer,  and  other  corporate  officers.  The 
corporate  body  acts  by  and  through  the  council,  who  have  the  authority  of 
the  old  corporations,  except  as  modified.  Provision  is  made  for  the  stated 
and  special  meetings  of  the  council;  the  notice  prescribed,  the  Quorum 
fixed  ;  the  presiding  officer  defined,  &c,  &c.  Power  is  given  to  make  by- 
laws, and  the  powers  of  the  council  defined,  and  provision  is  made  for 
powers  vested  in  trustees,  under  sundry  local  acts  of  parliament,  for  paving, 
lighting,  supplying  with  water  or  gas,  cleansing,  watching,  regulating,  or 
improving,  or  for  providing  or  maintaining  a  cemetery  or  market  in  the 
boroughs  being  transferred  to  the  body  corporate  of  the  borough  (Sec.  75, 
20  and  21  Vict.  Chap.  L.).  By  other  acts  of  parliament  the  boundaries  of 
boroughs  are  fixed  (6  and  7  Will.  IV.  Chap.  CIII.  1836)  ;  the  "  administra- 
tion of  the  borough  fund  "  regulated  (ib.  Chap.  CIV) ;  "  the  administration 
of  justice  "  provided  for  (ib.  Chap.  CV. ;  13  and  14  Vict.  Chap.  XCI.)  ;  bor- 
ough rates  regulated  (7  Will.  IV.  and  1  Vict.  Chap.  LXXXI.  1837  ;  2  and  3 
Vict.  Chap.  XXVIII. ;  3  and  4  Vict.  Chap.  XXVIII. ;  4  and  5  Vict.  Chap. 
XL VIII. ;  5  and  6  Vict.  Chap.  XCVIII. ;)  power  to  sell  and  mortgage  prop- 
erty and  to  charge  rates  given  (5  and  6  Vict.  Chap.  XCVIII. ;  23  and  24 
Vict.  Chap.  XVI.) ;  provision  made  as  to  maintaining  bridges  (13  and  14 
Vict.  Chap.  LXIV.  1850) ;  to  promote  public  libraries  (18  and  19  Vict.  Chap. 
LXX.  1855;  29  and  30  Vict.  Chap.  CXIV.) ;  in  relation  to  the  police  (19  and 
20  Vict.  Chap.  LXIX. ;  27  and  28  Vict.  Chap.  LXIV. ;  28  and  29  Vict.  Chap. 
XXXV.) ;  the  management  of  highways,  by  enabling  councils  to  adopt  par- 
ish roads  and  apply  their  funds  to  their  repair  (25  and  26  Vict.  Chap.  LXI.) ; 
for  safe  keeping  of  petroleum  (25  and  26  Vict.  Chap.  LXVI.) ;  for  the  pro- 
tection of  gardens  and  ornamental  grounds  (26  and  27  Vict.  Chap.  XIII.) ; 
in  relation  to  prisons  (28  and  29  Vict.  Chap.  CXXVI.  known  as  "  The  Pris- 
ons Act,  1865  ;"  29  and  30  Vict.  Chap.  C).  A  variety  of  other  statutes,  of 
less  importance,  in  relation  to  municipal  corporations,  have  been  passed 
since  the  general  act  of  1835,  some  amendatory  of  it  and  some  making  new 
and  additional  provisions.  By  the  famous  Disraeli  reform  bill  of  1867,  the 
right  to  vote  for  a  member,  or  members,  to  serve  in  parliament  for  bor- 
oughs was  extended  to  large  numbers  or  classes  of  persons  who  did  not 
before  possess  the  franchise.    New  American  Cyclopedia,  1868,  p.  327. 

1  Willc.  25. 


54  MUNICIPAL   CORPORATIONS.  [CH.  nl. 

has  reference  to  a  period  anterior  to  the  famous  Municipal 
Corporations  Act  of  September  9,  1835  (5  and  6  Will.  IV. 
Chap.  LXXVI.),  by  which  parliament  undertook  the  regulation 
of  this  important  subject.1  The  existing  law  of  corporations  is 
essentially  of  modern  growth,  and  has  yet  largely  to  be  devel- 
oped and  settled.  Having  occasion  to  refer  to  this  subject  in 
a  recent  case  in  Illinois,  a  distinguished  judge  said  ;  "  For- 
merly but  few  private  corporations  were  created,  and  these 
cut  so  small  a  comparative  figure  in  the  destinies  of  states,  that 
they  attracted  but  little  attention  on  the  part  of  law  makers, 
and  were  but  little  studied  by  the  courts.  Even  in  England, 
until  a  very  recent  period,  both  public  and  private  corpora- 
tions were  created  by  royal  prerogative,  without  the  interven- 
tion of  parliament,  and  were  invested  with  such  powers  and 
privileges  as  favorites  might  ask,  or  the  public  good  be  sup- 
posed to  require.  But  even  then  such  corporations  were  rare. 
ISTow  they  have  become  among  the  greatest  means  of  state  and 
national  prosperity.  It  is  probably  true,  that  more  corpora- 
tions were  created  by  the  legislature  of  Illinois,  at  its  last  ses- 
sion, than  existed  in  the  whole  civilized  world  at  the  com- 
mencement of  the  present  century.  This  state  of  things  has 
necessarily  led  to  a  more  careful  study  of  the  whole  subject, 
both  by  legislators  and  the  courts.2  Not  only  are  commercial 
or  business  corporations  being  thus  multiplied,  but  municipal 
corporations,  in  all  of  the  states,  are  constantly  created  and 
universally  adopted  as  part  of  the  ordinary  machinery  of  gov- 
ernment, so  that  it  is  rare  to  find  a  town  or  city  of  any  size  not 
incorporated  and  invested  with  the  power  of  local  government. 
There  are  in  the  United  States  thousands  of  incorporated 
places  acting  under  special  charters  granted  by  the  states  or 
general  incorporation  acts  passed  by  them. 

§  18.  The  power  of  congress  to  create  or  authorize  the  crea- 
tion of  corporations,  public  or  private,  whenever  these  be- 
come an  appropriate^means  of  exercising  any  of  the  constitu- 

1  Ante,  Sec.  16,  p.  51. 

''  Per  Caton,  J.,  Railroad  Co.  v.  Dalby,  19  111.  353,  1857.  See,  also,  similar 
observations  of  Rogers,  J.,  in  Bushnell  ti.  Insurance  Co.  15  Serg.  &  Bawle 
176,  177. 


CH.  III.]    CREATION  AND  GRADES  OP  PUBLIC  CORPORATIONS.  55 

tional  powers  of  the  general  government,  or  of  facilitating  its 
lawful  operations  in  the  states  or  territories,  must  be  taken  to 
be  conclusively  settled  by  the  supreme  court.1  This  power  has 
been  exercised  on  important  occasions,  such  as  incorporating 
the  banks  of  the  United  States,  the  national  banks,  and  the 
Pacific  railroad  company,  and,  within  the  above  limitations,  it 
is  no  longer  disputed.  Congress  habitually  passes  acts  for  the 
organization  of  territories  and  territorial  governments,  which 
are,  in  substance  and  effect,  municipal  corporations  on  a  large 
scale  and  of  a  peculiar  character ;  but  it  is  not  within  the  pow- 
er of  congress  to  establish  ordinary  municipal  corporations 
within  the  limits  of , the  states,  and  it  has  never  attempted  to 
exercise  it. 

In  a  territorial  organic  act,  a  provision  that  the  power  of 
the  territorial  legislature  "  shall  extend  to  all  rightful  subjects 
of  legislation,"  authorizes  the  legislature  to  create  municipal 
corporations,  and  to  invest  them  with  the  power  to  make  ordi- 
nances, and  to  provide  corporation  courts  in  which  to  enforce 
them.  And  such  courts  may  be  provided,  although  by  the 
organic  act  it  is  declared  that  the  judicial  power  of  the  territory 
shall  be  vested  in  a  supreme  court,  district  courts,  probate 
courts,  and  justices  of  the  peace.2 

1  McCullough  v.  Maryland,  4  Wheat.  316  ;  Osboriv  v.  Bank,  of  U.  S.  9  ib. 
738  ;  Thompson  «.,  Pacific  Eailroad  Co.  9  Wall.  579 ;  Pacific  Railroad  v. 
Lincoln  Co.  1  Dillon,  C.  C.  314,  1871. 

2.  State  v.  Young,  3  Kansas,  445,  1866 ;  Burnes  v.  Achison,  2  ib.  454 ;  S.  P. 
Reddick  v.  Amelia,  1  Mo.  5,  1821.  In  this  case  the  objection  made  was,  that 
such  a  legislature  was  not  sovereign,  and  that  nothing  short  of  sovereign 
power  could'  create  a  corporation.  The  answer  given  was,  that  congress 
could  give,  and  had  given,  the  power  to  legislate  on  such  subjects.  That  a 
territorial  legistature,  vested  with  general  legislative  powers,  may  create  a 
corporation,  which  is  not  affected  by  the  subsequent  adoption  of  a  state 
constitution,  was  held  in  Vincennes  University  v.  Indiana,  14  How.  268, 
1852.  See,  also,  Vance  v.  Bank,  1  Blackf.  (Ind.)  80 ;  Myers  v.  Bank,  20  Ohio, 
283. 

It  is  now  provided  by  act  of  congress,  "  That  the  legislative  assemblies  of 
the  several  territories  of  the  United  States,  shall  not,  after  the  passage  of 
this  act,  grant  private  charters  or  especial  privileges,  but  they  may,  by  gen- 
eral incorporation  acts,  permit  persons  to  associate  themselves  together  as 
bodies  corporate  for  mining,  manufacturing,  and  other  industrial  pursuits." 
i   M  March  2,  1867,  14  Stats,  at  Large,  426,  Sec.  1. 


56  MUNICIPAL   CORPORATIONS.  [CH.  III. 

§  19.  In  this  country,  until  comparatively  a  recent  period, 
municipal  corporations  have  been  created  singly,  each  with  its 
special  or  separate  charter  passed  by  the  legislature  of  the 
state.  These  charters,  in  all  of  the  states,  were  framed  after 
the  same  general  model,  but  in  the  extent  of  the  special 
powers  conferred,  and  in  the  peculiar  constitution  of  the  gov- 
erning body,  and  the  like,  there  was  great  variety.  It  will  be 
useful  to  notice  the  outline  features  of  one  of  these  charters, 
since  it  constitutes  the  organic  act  of  the  corporation,  and  be- 
stows upon  it  its  legal  character.  Such  a  charter  usually  sets 
out  with  an  incorporating  clause  declaring,  "  that  the  inhabit- 
ants1 of  the  town  of  (naming  it),  or  city  of  (naming  it),  are 
hereby  constituted  a  body  politic  and  corporate  by  the  name 

and  style  of  the  '  town  of ,'  or  '  city  of ,'  and  by  that 

name  shall  have  perpetual  succession,  may  use  a  common  seal, 
sue  and  be  sued,  purchase,  hold,  and  sell  property,"  &c.  The 
charter  then  defines  the  territorial  boundaries  of  the  town  or 
city  thus  incorporated.  After  that  follow  provisions  relating 
to  the  governing  body  of  the  corporation,  usually  styled  the 
town  or  city  council.  This  is  generally  composed  of  one  body, 
though  in  some  instances,  of  two;  the  members  being  called 
aldermen,  coun oilmen,  or  trustees.  The  corporation  is  di- 
vided into  wards,  and  each  ward  elects  one  or  more  aldermen, 
the  number  being  specified  and  definite.  The  qualifications 
of  the  voters  are  fixed  by  the  charter,  which  are,  usually,  that 
the  voter  shall  be  a  male  citizen  of  the  United  States  and  of 
the  state,  be  of  age,  and  a  resident,  for  a  specified  time,  within 
the  limits  of  the  corporation.     The  mode  of  holding  elections 

1  In  public  corporations,  as  cities,  towns,  parishes,  school  districts,  mem- 
bership is  constituted  by  living  within  certain  limits,  whatever  may  be  the 
desire  of  the  individual  thus  residing  or  that  of  the  municipal  or  public 
body.  In  private  corporations,  on  the  other  hand,  especially  those  organ- 
ized for  pecuniary  profit,  membership  is  constituted  by  subscribing  to  or 
receiving,  with  the  assent  of  the  corporation,  when  that  is  necessary,  trans- 
fers of  its  stock.  Overseers  of  Poor,  &c,  i>.  Sears,  22  Pick.  122,  130,  per 
Shaw,  C.  J. ;  Oakes  v.  Hill,  10  Pick.  333,  346,  per  Morton,  3. ;  ante,  p.  17,  and 
notes.  It  is  the  citizens  or  inhabitants  of  a  city,  not  the  common  council 
or  local  legislature,  who  constitute  the  ''  corporation "  of  the  city.  The 
officers  of  the  council  and  other  charter  officers  are  the  agents  or  officers 
of  the  corporation.  Lowler  v.  Mayor,  &c,  of  N.  Y.  5  Abbott's  Pr.  R.  325 ; 
Clarke  v.  Rochester,  24  Barb.  446,  1857. 


CH.  III.]    CREATION  AND  GRADES  OF  PUBLIC  CORPORATIONS.  57 

is  specified;  and  the  power  is  often  given  to  the  council  to 
canvass  returns,  and  to  settle  disputed  elections  to  corporate 
offices.  Provision  is  made  for  the  election  of  a  mayor,  or 
other  chief  executive  officer  of  the  corporation,  and  his  duties 
defined.  The  charter  contains  a  minute  and  detailed  enumer- 
ation of  the  powers  of  the  city  council,  which  are  usually 
numerous;  the  most  important  of  which  are,  the  authority  to 
create  debts  (sometimes  restricted) ;  to  levy  and  collect  taxes 
within  the  corporation,  for  corporate  purposes;  to  make  local 
improvements  and  assessments  to  pay  therefor;  to  appoint 
corporate  officers ;  to  enact  ordinances  to  preserve  the  health 
of  the  inhabitants,  to  prevent  and  abate  nuisances,  to  prevent 
fires,  to  establish  and  regulate  markets,  to  regulate  and  license 
given  occupations,  to  establish  a  police  force,  to  punish  of- 
fenders against  ordinances;  to  open  and  grade  and  improve 
streets;  to  hold  corporation  courts,  &c,  &c.  When  it  is  re- 
membered that  the  charter  of  such  a  corporation  is  its  consti- 
tution, and  gives  it  all  the  powers  it  possesses  (unless  other 
statutes  are  applicable  to  it),  its  careful  study,  in  any  given 
case,  is  indispensable  to  an  understanding  of  the  nature  of 
tbe  powers  it  confers,  the  duties  it  enjoins,  and  liabilities 
it  creates.  The  construction  of  its  various  provisions,  and  the 
determination  of  the  relation  which  these  bear  to  the  general 
statutes  of  the  state;  how  far  the  charter  controls,  or  how  far 
it  is  controlled  by,  other  legislation,  are  among  the  most  diffi- 
cult questions  which  perplex  the  lawyer  and  the  judge.  The 
study  of  a  question  of  corporation  law  begins  with  tbe  charter, 
but  it  must,  oftentimes,  be  pursued  into  the  general  statutes 
and  legislative  policy  of  the  state,  and  after  this  into  the  broad 
field  of  general  jurisprudence. 

§  20.  Within  a  period  comparatively  recent,  the  legisla- 
tures of  a  number  of  the  states,  following  the  example  of  the 
English  Municipal  Corporations  Act  of  5  and  6  Will.  IV. 
Cap.  LXXVI.  heretofore  mentioned,  have  passed  general  acts 
respecting  municipal  corporations.  These  acts  abolisb  all 
special  charters,  or  all  with  enumerated  exceptions,  and  enact 
general  provisions  for  the  incorporation,  regulation,  and  gov- 
ernment of  municipal  corporations.     The  usual  scheme  is  to 

8 


58  MUNICIPAL    CORPORATIONS.  [CH.  III. 

grade  corporations  into  classes,  according  to  their  size,  as  into 
Cities  of  the  First  Class,  Cities  of  the  Second  Class,  and 
Towns^  or  Villages,  and  to  bestow  upon  each  class  such 
powers  as  the  legislature  deems  expedient;  but  the  powers 
and  mode  of  organization  of  corporations  of  each  class  are 
uniform.1     General    incorporation   acts,    rather   than    special 

i  Ohio.— By.  the  Towns',  Cities',  and  Villages'  Act  of  May  3,  1852  (Swan's 
Stat.  954),  all  corporations  existing  for  the  purposes  of  municipal  govern- 
ment are  thereby  organized  into  cities  and  incorporated  r'Uages.  (Seel.) 
In  respect  to  the  exercise  of  certain  corporate  powers,  municipal  corpora- 
tions are  divided  into  classes,  thus:  1.  Cities  of  first  class,  which  comprise 
all  cities  having  a  population  exceeding  twenty  thousand  inhabitants; 
2,  Cities  of  the  second  class,  which  comprise  all  cities  not  embraced  in  the 
first  class;  3.  Incorporated  villages;  and  4.  Incorporated  villages  for  special 
purposes.  lb.  Sec.  39'  et  se'q.  These:  are  "declared  to  be  bodies  politic 
and  corporate,  under  the  name  and  style  of  the  city  of ,  or  the  incor- 
porated village  of ,  as  the  case  may  be ;  capable  to  sue  and  be  sued,  to 

contract  and  be  contracted  with,  to  acquire,  hold,  and  possess  property, 
real  and  personal,  to  have  a  common  seal,  and  to  exercise  such  other 
powers,  and  to  have  such  other  privileges,  as  are  incident  to  municipal 
corporations  of  like  character  or  degree,  not  inconsistent  with  this  act  or 
the  general  laws  of  the  state."  lb.  Sec.  18.  These  powers  and  privileges 
are  then  specified  with  great  minuteness,  twenty  sections  of  the  act  being 
devoted  to  this  purpose.  Incorporated  villages  are  governed  by  one 
mayor,  one  recorder,  and  five  trustees/ elected  annually;  the  mayor,  re- 
corder, and  trustees  constituting  the  village  council,  any  five  of  whom 
make  a  quorum.  lb.  Sec:  43.  The  corporate  authority  of  cities  is  vented 
in  the  mayor,  one  board  of  trustees  (two  from  each  ward),  and  who  com- 
pose the  city  council,  together  with  such  other  officers  as  are  mentioned  in 
the  act,  or  as  may  be  created  under  its  authority.    lb.  Sec.  52  et  seq. 

"The  governing  all  cities  and  villages  under  one  general  law,  was  a  new 
experiment,  supposed  to  be  required  by  the  present  constitution.  It  was 
to  be  expected,  that,  in  the  working  of  the  experiment,  omissions,  if  not 
mistakes,  would  be  discovered,  to  be  corrected  by  additional  legislation. 
It  will  be  a  work  of  care  and  time  to  perfect  an  orderly  and  harmonious 
system."    Per  Gholson,  J.,  in  Thomas  i>.  Ashland,  12  Ohio  St.  124,  130,  1861. 

Iowa.1—  The  Ohio  act  is,  in  substance,  adopted  in  Iowa.  Revision  1860, 
Chap.  LI.  But  it  does  not  apply  to  cities  having  special  charters,  unless 
adopted  by  them.    Burke  v.  Jeffries,  20  Iowa,  145. 

In  Tennessee  (Acts  1849,  Chap.  17)  provision  is  made  by  general  act  for 
the  incorporation  of  towns,  cities,  and  villages.  The  constitution  of  Ten- 
nessee declares,  that  "  The  legislature  shall  have  power  to  grant  charters 
of  incorporation  as  .they  may  deem  ,  expedient  for  the  public  good."  Art. 
XI.  Sec.  7.  In  the  State  v.  Armstrong,  3  Sneed,  634,  it  was  held,  that  .the 
act  of  1856,  by  which  full  power  to  create  corporations,  and  determine  the 
extent  of  their  powers,'  was  given  to  the  Circuit  Courts,  was  unconstitu- 


CH.  III.]   CREATION  AND  GRADES  OF  PUBLIC  CORPORATIONS.  59 

charters,  would  seem  clearly  to  be  the  best  method  of  creat- 
ing and  organizing  municipal  corporations.  1.  It  tends  to 
prevent  favoritism  and  abuse  in  procuring  extraordinary 
grants  of  special  powers.  2.  It  secures  uniformity  of  rule 
and  construction.  3.  All  being  Created  and  eiidowed  alike, 
real  wants  are  the  sooner  felt  and  provided  for,  and  real  griev- 
ances the  sooner  redressed. 

tional,  on  the  ground  that  the  legislature  could  not  delegate  its  authority 
to  the  courts.  But  in  the  Mayor,  &c.  v.  Shelton,  1  Head,  24,  1858,  it  was 
held,  that  the  act  of  1849 — which  was  a  general  statute  for  the  incorpora- 
tion of  towns  and  cities,  and  by  which  a  petition  was  to  be  presented  by 
the  inhabitants  of  a  place  proposing  to  organize  under  the  act,  to  the 
County  Court,  which  had  power  simply  to  record  the  petition  and  desig- 
nate the  boundaries  of  the  corporation — was  not  in  conflict  with  the  con- 
stitution, as  the  statute,  and  not  the  court,  determined  the  extent  and 
nature  of  the  powers  of  the  corporation. 

Missouri. — A  general  act  for  the  incorporation  of  towns  was  passed  in 
Missouri  in  1845,  and  it  was  held  not  unconstitutional  by  reason  of  certain 
duties  which  it  imposes  on  the  County  Court  with  reference  to  organization 
of  towns  under  the  act,  as  these  duties  are  not  legislative  but  judicial,  and 
the  law  itself,  and  not  the  court,  declares  the  powers  of  which  the  corpora- 
tion shall  be  possessed.     Kayser  v.  Trustees,  &c.  16  Mo.  88,  1852. 

Indiana. — The  general  law  of  1857,  for  the  incorporation  of  cities,  is  not 
unconstitutional  for  want  of  uniformity  in  the  mode  of  their  organization. 
Lafayette  v.  Jenners,  10  Ind.  70,  80,  1857.  See  also  Welker  v.  Potter,  18 
Ohio  St.  85. 

Pennsylvania. —  A  general  act  was  passed  in  1851,  designed  to  form  a  sys- 
tem for  the  regulation  of  boroughs  incorporated  thereafter.  Comw.  v.  Mont- 
rose, 52  Pa.  St.  391. 

North  Carolina. — By  general  act,  every  incorporated  town  may  elect,  each 
year,  not  less  than  three,  nor  more  than  seven,  commissioners,  who  are  a 
body  corporate  and  the  governing  body  of  the  town.  These  commissioners 
are  elected  by  the  vote  of  the  citizens  of  the  place.  At  the  same  time  they 
are  also  to  elect  a  mayor,  who  presides  at  the  meetings  of  the  commission- 
ers, but  who  has  no  vote  except  in  case  of  a  tie.  The  mayor  is  both  a 
peace  officer  and  a  judicial  officer,  with  the  same  jurisdiction  as  a  justice  of 
the  peace,  with  power  also  to  "  hear  and  determine  all  cases  that  may 
arise  upon  the  ordinances  of  the  commissioners,"  &c.  The  commissioners 
may  levy  certain  specified  taxes,  and  make  ordinances  in  relation  to  their 
officers,  records,  markets,  nuisances,  the  repair  of  streets  and  bridges  in  the 
town,  &c,  &c.  These  general  provisions  apply  to  all  incorporated  towns 
when  not  inconsistent  with  special  charters  or  acts  in  reference  thereto. 
Rev.  Code  1854,  Chap.  III.  p.  586. 

New  York. — In  this  state  there  are  cities  with  local  and  special  charters, 
and  also  towns  whose  powers,  duties,  and  privileges  are  particularly  pre- 
scribed by  statute.    Each  town  is  a  body  corporate  for  specified  purposes ; 


60  MUNICIPAL   CORPORATIONS.  [CH.  III. 

By  Implication. 

§  21.  It  is  well  settled  in  England  that,  while  a  corpora- 
tion must  commence  or  be  instituted  by  the  proper  authority, 
yet  no  fixed,  prescribed,  or  precise  form  of  words  is  necessary, 
in  order  to  create  a  corporation.  While  the  words  "  to  found," 
"to  erect  or  establish,"  or  "to  incorporate,"  are  commonly 
used  to  evince  the  intention  to  erect  or  create  a  body  politic, 
they  are  not  necessary.1  The  king  grants  a  charter  to  the 
men  of  Dale,  that  they  may  annually  elect  a  mayor,  and  plead 
and  be  impleaded  by  the  name  of  the  mayor  and  commonalty. 
This  is  considered  to  be  sufficient  to  incorporate  them.2  So  a 
grant  by  a  charter  containing  no  direct  clause  of  incorporation  to 
the  inhabitants  of  a  town   "  that  their  town  shall  be  a   free 

but  it  is  declared  that  "  No  town  shall  possess  or  exercise  any  corporate 
powers  except  such  as  are  enumerated  in  this  chapter,  or  shall  be  specially 
given  by  law,  or  shall  be  necessary  to  the  exercise  of  the  powers  so  enu- 
merated or  given."  Eev.  Sts.  part  I.  Chap.  XI.  p.  337,  Sees.  1,  2.  "  The 
several  towns  in  this  state,"  says  Denio,  J.,  in  Lorillard  v.  The  Town  of 
Monroe,  11  N.  Y.  (1  Kern.),  392,  1854,  "  are  corporations  for  certain  special 
and  very  limited  purposes,  or,  to  speak  more  accurately,  they  have  a  cer- 
tain limited  corporate  capacity.  They  may  purchase  and  hold  lands  within 
their  own  limits  for  the  use  of  their  inhabitants.  They  may,  as  a  corpora- 
tion, make  such  contracts  and  hold  such  personal  property  as  may  be  nec- 
essary to  the  exercise  of  their  corporate  or  administrative  powers,  and,  as 
a  necessary  incident,  may  sue  and  be  sued,  where  the  assertion  of  their 
corporate  rights,  or  the  enforcement  against  them  of  their  corporate  liabili- 
ties, shall  require  such  proceedings.  (1  R.  S.  337,  Sec.  1  et  seq.)  In  all 
other  respects — for  instance,  in  everything  which  concerns  the  adminis- 
tration of  civil  or  criminal  justice,  the  preservation  of  the  public  health 
and  morals,  the  conservation  of  highways,  roads,  and  bridges,  the  relief  of 
the  poor,  and  the  assessment  and  collection  of  taxes — the  several  towns 
are  political  divisions,  organized  for  the  convenient  exercise  of  portions  of 
the  political  power  of  the  state,  and  are  no  more  corporations  than  the 
judicial,  or  the  senate  and  assembly  districts.  26.  Sec.  2.  The  functions 
and  duties  of  the  several  town  officers  respecting  these  subjects,  are  judicial 
and  administrative,  and  not  in  any  sense  corporate  functions  or  duties," 
and  hence,  as  to  such  subjects,  the  towns  as  corporations  are  not  liable  for 
any  default  or  malfeasance  of  these  officers.  See,  as  to  the  corporate  capac- 
ity of  towns  in  New  York,  Denton  v.  Jackson,  2  Johns.  Ch.  E.  320;  North 
Hempstead  v.  Hempstead,  2  Wend.  109;  affirming  S.  C.  Hopk.  288;  Cornell 
v.  Guilford,  1  Denio,  510. 

1  10  Co.  27  a,  28  a,  29  b,  30 ;  1  Kyd,  62 ;  2  Kent  Com.  27. 

2  21  Edw.  IV.  56.    The  doctrine  of  a  corporation  by  implication  origin- 
ated in  the  time  of  Edward  IV.    76.  8  Edw.  IV.  28. 


CH.  in.]  CREATION  AND  GRADES  OF  PUBLIC  CORPORATIONS.      61 

borough,  incorporates  it.1  So,  also,  a  grant  by  the  king  to  the 
men  of  Dale  that  they  be  discharged  of  tolls,  incorporates  them 
for  this  particular  purpose,  but  does  not  enable  them  to  pur- 
chase.2 The  settled  doctrine  is  that  a  corporation  may  be 
created  by  implication,  as  well  as  by  the  use  of  express  words. 
But  this  implication,  to  be  sufficient,  must  clearly  evince  or 
express  the  intention  to  establish  or  constitute  a  body  politic 
or  corporate — that  is,  to  invest  it  with  corporate  powers  and 
privileges.  But  the  absence  of  express  provision  respecting 
the  incidents  which  the  law  tacitly  annexes  to  corporations,  is 
considered  immaterial.  Thus  the  omission  in  the  charter  or 
act  of  the  words  "to  plead  and  be  impleaded,"  or  "to  have  a 
seal,"  or  "to  make  by-laws,"  would  not  make  it  essentially 
defective.3  So  it  would  not  be  essentially  defective  if  the 
name  was  omitted,  if  the  name  could  be  ascertained  from  the 
terms  of  the  charter  or  act,  or  from  the  nature  of  the  thing  or 
matters  granted.4  Certain  attributes  or  powers  are  absolutely 
essential  to  constitute  a  body  corporate,  such  as  perpetual  suc- 
cession, the  right  to  contract,  to  sue  and  be  sued  as  a  corpora- 
tion, &c.     Now  if  the  charter  or  act,  which  is  relied  upon  as 

1  1  Kyd,  62,  cites  Firm.  Burg.  Chap.  II. ;  Madox  Hist.  Exch.  402. 
5  Vin.  Abr.  Corp.  F.  pi.  6 ;  ib.  pi.  4 ;  Bagot's  Case,  7  Edw.  IV.  29  ;  Grant  on 
Corp.  43,  note  e,  and  cases  cited. 

3  1  Bol.  Abr.  513 ;  1  Kyd,  63 ;  The  Conservators,  &c.  v.  Ash,  10  Barn.  & 
Cress.  349;  21  Eng.  C.  L.  97,  1829.  "It  is  not  necessary,"  says  Mr.  Kyd, 
"  that  the  charter  should  expressly  confer  those  powers  without  which  a  col- 
lective body  of  men  cannot  be  a  corporation,  such  as  the  power  of  suing 
and  being  sued,  and  to  take  and  grant  property,  though  such  powers  are,  in 
general,  expressly  given."  1  Kyd  Corp.  63.  Thus,  in  the  case  of  the  Bor- 
ough of  Yarmouth,  1609,  2  Brownlow  &  Goldsb.  292,  part  II.  it  was  decided 
by  the  common  bench,  per  Lord  Coke,  that  a  grant  of  incorporation  to  the 
burgesses  or  citizens  of  a  borough  or  city-,  which,  being  an  old  grant,  should 
be  favorably  construed,  was  good,  without  the  words  "  their  successors." 
And  see,  on  this  subject,  the  learned  opinion  of  Shaw,  C.  J.,  in  Overseers  of 
Poor,  &c.  v.  Sears,  22  Pick.  122, 130,  1839.  He  says :  "  The  mode  of  perpet- 
uating the  existence  of  a  corporate  body  is  not  essential ;  all  that  is  essen- 
tial is  that  some  mode  be  provided  by  the  charter  or  act  by  which  it  is  con- 
stituted, or  by  the  general  laws  of  the  government,  by  means  of  which  it 
shall  be  so  perpetuated."  22  Pick.  130 ;  The  Conservators  v.  Ash,  10  Barn. 
&  Cress.  349 ;  21  Eng.  C.  L.  97. 

4  Trustees  v.  Parks,  10  Maine  (1  Fairf.),  441 ;  School  Com.  v.  Dean,  2  Stew. 
&  Port.  (Ala.)  190,  1832. 


62  MUNICIPAL   CORPORATIONS.  [CH.  III. 

creating  a  body  corporate  by  implication,  instead  of  simply 
omitting  to  express  these  essential  properties,;  negatives  and  ex- 
cludes them,  it  is  plain  that  the  body  would  not  be  .deemed 
incorporated.1 

§  22.  Although,  corporations  in  this  country  are  created  by 
statute,  still  the  rule  is  here  also  settled  that  not,  only  private 
corporations  aggregate,  but  municipal  or  public  corporations, 
may  be  established  without  any  particular  form  of  words,  qr 
technical  mode  of  expression,  though  such  words-  are  com- 
monly employed.2  If  powers  and  privileges  are  conferred 
upon  a  body  of  men,  or  upon  the  residents  or  inhabitants  of  a 
town  or  district,  and  if  these  cannot  be  exercised  and  enjoyed, 
and  if  the  purposes  intended  cannot  be  carried  into  effect, 
without  acting  in  a  corporate  capacity,  a  corporation  is,  to  this 
extent,  created  by  implication.  The  question  turns  upon  the 
intent  of  the  legislature,  and  this  can  be  shown  constructively 
as  well  as  expressly.3  This  is  well  illustrated  in  a  case  in  Mas- 
sachusetts,* where  the  question  was  whether  the  plaintiffs  were 
a  corporate  body,  with  power  to  sue.  They  were  not  incor- 
porated expressly.  But,  by  statute,  the  inhabitants  of  the  sev- 
eral school  districts  were  empowered,  at  any  meeting  properly 
called,  to  raise  money  to  erect,  repair,  or  purchase  a  school 
house,  to  determine  its  site,  &c,  &c,  the  majority  binding  the 

1  Grant  on  Corp.  30. 

2  Thomas  v.  Dakin,  22  Wend.  9,  84,  per  Cowen,  J.,  and  authorities  cited ; 
Bow  v.  Allentown,  34  N.  H.  351,  372;  Stebbins  v.  Jennings,  10  Pick.  172; 
Denton  v.  Jackson,  2  John.  Ch.  325,  326,  1817 ;  Mahoney  v.  The  Bank  of  the 
State,  4  Ark.  620,  1842 ;  S.  C.  well  digested  in  Angell  &  Ames  on  Corp.  Sec. 
77 ;  North  Hempstead  v.  Hempstead,  2  Wend.  109,  133,  opinion  by  Savage, 
C.  J. ;  Conservators  of  River  Tone  v.  Ash,  10  Barn.  &  Cress.  349  ;  Jeffreys  v. 
Garr,  2  B.  &  Adol.  841 ;  ex  parte  Newport  Trustees,  16  Sim.  346;  2  Kent 
Com.  27. 

3  Skme  cases  last  cited. 

1  Inhabitants,  &c.  u.Wood,  13  Mass.  193,  1816— Mr.  Fessenden,.  for  the 
plaintiff,  and  Mr.  Greenleaf,  for  the  defendant.  In  Bow  v.  Allentown,  34  N. 
H.  351,  it  was  held  that  the  annexation,  by  the  legislature,  of  other  territory 
to  the  toivn  of  Allentown  made  that  a  corporate  town  by  implication,  if  it  was 
not  so  before ;  and  such,  also,  was  the  effect,  under  the  constitution  of  New 
Hampshire,  of  a  grant  to  a  place  having  less  than  one  hundred  and  fifty 
polls  to  send  a  representative.  A  legislative  grant  gives  capacity  to  hold 
the  thing  granted.     Lord  iS.  Bigelow,  8  Verm.  465. 


OH.  III.]    CREATION  AND  GRADES  OF  PUBLIC  CORPORATIONS.  63 

minority.  The  cause  was  argued  by  able  counsel,  and,  after 
several  consultations,  the  supreme  court  all  finally  agreed  in 
the  opinion  that  the  plaintiffs  possessed  sufficient  corporate 
powers  to  maintain  an  action  on  a  contract  to  build  a  school 
house,  and  to  make  to  them  a  lease  of  land. :  But  the  intention 
of  the  legislature,  where  it  is  sought  to  show  that  a  corpora- 
tion has  been  created  by  implication,  must  plainly  appear.1 

Acceptance  of  Charter. 

§  23.  The  rule  which  applies  to  private  corporations,  that 
the  incorporating  act  is  ineffectual  to  constitute  a  corporate 
body  until  it  is  assented  to  or  accepted 'by  the  corporators,  has  no 
application  to  statutes  creating  municipal  corporations.  These 
are  imperative  and  binding  without  any  consent,  unless  the  act 
is  expressly  made  conditional.  All  who  live  within  tbe  limits 
of  the  incorporated  district  are  bound  by  them,  and  can  only 
withdraw  from  the  corporation  by  removal.  Over  such  cor- 
porations the  legislature,  unless  restrained  by  the  constitution, 
has  entire  control ;  and  unless  otherwise  provided  by  the  act 
itself,  or  a  different  intention  be  manifested,  the  public  corpo- 
ration is  legally  constituted  as  soon  as  the  incorporating  act 
declaring  it  to  exist  goes  into  effect.2     But  while  the  legislature 

1  Medical  Institute  v.  Patterson,  1  I)enio,  61 ;  S.  C.  affirmed  in  court  of 
errors,  o  ib.  618,  1846 ;  Myers  v.  Irwin,  2  Serg.  &  Kawle,  368,  1816 ;  Angell  & 
Ames,  Sec.  79,  and  cases  cited;  Wells  v.  Burbank,  17  N.  H.  393  ;  Society,  &c. 
v.  Town  of  Pawlet,  4  Pet.  (U.  S.)  480,  502.  To  establish  a  corporation  by 
implication,  says  Shaw,  C.  J.,  in  Stebbins  v.  Jennings,  10  Pick.  172,  it  must 
appear  that  the  rights  and  powers  conferred  can  only  be  enjoyed  by  the 
exercise  of  corporate  powers,  and,  therefore,  if  such  powers  are  not  neces- 
sary, they  are  not  impliedly  given. 

2  Berlin  v.  Gorham,  34  N.  H.  266,  1856,  per  Bell,  J.,  where  it  is  according- 
ly held,  that  to  make  an  incorporation  of  a  town  effectual,  it  is  not  nec- 
essary that  there  should  be  »  legal  town  jneeting  holden  in  it.  See  also 
People  v.  Wren,  4  Scam.  269;  Warren  v.  Charlestown,  2  Gray,  104;  Mills 
v.  Williams,  11  Ire.  558  ;  State  v.  Curran,  7  Eng.  321 ;  Fire  Department  v. 
Kip,  10  Wend.  267  ;  People  v.  Morris,  13  Wend.  325,  337  ;  Brouwer  v.  Ap- 
pleby, 1  Sandf.  158, 1847 ;  People  v.  President,  9  Wend.  351;  Wood  v.  Bank, 
9  Cow.  194,  205,  1828  ;  Proprietors,  &c.  v.  Horton,  6  Hill,  501 ;  Gorham  v. 
Springfield,  21  Maine,  58, 1842  ;  People  v.  Stout,  23  Barb.  349,  1856  ;  Bristol 
v.  New  Chester,    3   N.  H.  524,  532, 1826 ;    State  v.  Canterbury,  8  Fost.  218. 


64  MUNICIPAL   CORPORATIONS.  [CH.  HI. 

is  not  bound  to  obtain  the  acceptance  or  assent  of  the  munici- 
pal corporation,  it  is  well  established  that  a  provision  in  a  ma- 
nicpal  charter  that  it  shall  not  take  effect  unless  assented  to  or 
accepted  by  a  majority  of  the  inhabitants,  is  not  unconstitution- 
al, it  being  in  no  just  sense  a  delegation  of  legislative  power, 
but  merely  a  question  as  to  the  acceptance  or  rejection  of  a 
charter.1  So  a  provision  in  a  charter,  or  the  constituent  act  of  a 
municipal  corporation,  by  which  the  right  to  make  certain  im- 
provements or  to  create  certain  liabilities  is  made  to  depend 
upon  a  vote  of  the  people  interested,  has  frequently  been  up- 
held as  valid.2  So  an  act  directing  an  election  to  be  held  by 
the  qualified  electors  interested  to  determine,  by  ballot,  wheth- 
er a  newly-erected  township  should  be  continued,  is  constitu- 

Acceptance,  when  requisite,  may,  doubtless,  be  implied,  in  proper  cases,  as 
where  no  particular  mode  of  expressing  acceptance  is  prescribed,  from  cor- 
porate acts  and  conduct,  as  in  cases  of  private  corporations.  Taylor  v.  New- 
berne,  2  Jones  Eq.  (N.  C.)  141,  1855.  See  Zabriskie  v.  Railroad  Co.  23  How. 
(U.  S.)  381,  397,  1859. 

1  People  v.  Salomon,  51  111.  53,  1869 ;  Alcorn  v.  Horner,  38  Miss.  652, 1860 ; 
Patterson  v.  Society,  &c.  4  Zabr.  (N.  J.)  385, 1854 ;  Smith  v.  McCarthy,  56  Pa. 
St.  359  ;  County  v.  Quarter  Sessions,  8  Barr.  395  ;  Commonwealth  v.  Painter, 
10  ib.  214  ;  and  see  also  Bull  v.  Read,  13  Gratt.  (Va.)  78, 1853 ;  People  v.  Rey- 
nolds, 5  Gilm.  (111.)  1 ;  State  v.  Scott,  17  Mo.  521 ;  Hudson  Co.  v.  State,  4 
Zabr.  718  ;  Bank  v.  Brown,  26  N.  Y.  467,  1863.  This  case  asserts  a  distinc- 
tion between  a  bill  submitted  to  the  people  of  the  whole  state  for  adoption 
or  rejection,  and  an  act  which  leaves  it  to  the  inhabitants  of  a  particular 
locality  whether  they  will  avail  themselves  of  its  provisions.  It  has  been 
held  in  New  Hampshire  that  it  was  competent  for  the  legislature,  under 
the  constitution  of  the  state,  to  enact  a  penal  law  which  shall  have  effect 
only  in  those  towns  which  adopt  it  by  vote.  State  v.  Noyes,  10  Post.  279, 
1855.  An  amendment  to  a  city  charter  was  to  take  effect  only  when 
adopted  "by  a  majority  of  the  voters  of  the  city."  This  was  considered  to 
manifest  the  intention  to  present  the  question  of  acceptance  to  the  voters 
at  a  regular  city  election.  The  council  ordered  the  vote  to  be  taken  at  the 
toiimship  polls ;  the  voters  of  the  two  organizations  possessing  different 
qualifications,  but  the  township  and  city  occupied  precisely  the  same  terri- 
tory :  Held,  that  the  election  was  of  no  validity,  and  that  the  amendment 
had  never  been  duly  accepted.    Poote  v.  Cincinnati,  11  Ohio,  408, 1842. 

2  Clarke  v.  Rochester,  28  N.  Y.  605  ;  Bank  of  Rome  v.  Rome,  18  N.  Y.  38 ; 
Trustees  v.  Cherry,  8  Ohio  St.  564 ;  Burnes  v.  Achison,  2  Kansas,  454,  1864  ; 
Bank  v.  Brown,  26  N.  Y.  467 ;  Hammond  v.  Haines,  25  Md.  541 ;  Railroad 
Co.  v.  Commissioners,  1  Ohio  St.  77  ;  Foote  v.  Cincinnati,  11  Ohio,  408, 
1842 ;  St.  Louis  v.  Alexander,  23  Mo.  483 ;  Blanding  i>.  Burr,  13  Cal.  343. 
These  cases  are  distinguishable  from  Barto  v.  Himrod,  4  Seld.  483. 


CH.  III.]   CREATION  AND  GRADES  OF  PUBLIC  CORPORATIONS.  65 

tional.1  On  the  same  principle  the  legislature  may  provide 
that  a  statute  shall  cease  to  exist  unless  the  municipal  corpo- 
ration to  he  affected  by  it  shall,  within  a  prescribed  period,  as- 
sent to  it.2 

Special  Constitutional  Provisiom. 

§  24.  The  constitutions  of  many  of  the  states  contain  pro- 
visions respecting  the  creation  and  powers  of  municipal  corpo- 
rations. In  some  of  the  constitutions  the  legislature  is  in 
terms  allowed  to  create  corporations  for  municipal  purposes  by 
special  act,3  and,  in  others,  it  is,  in  terms,  forbidden  to  do  this, 
and  required  to  provide  a  general  law  for  all  corporations,  pub- 
lic and  private.4     So  far  as  municipal  corporations  and  their 

1  Commonwealth  v.  Judges,  &c.  8  Pa.  St.  391 ;  distinguished  from  Parker 
v.  Commonwealth,  6  ib.  507  ;  Commonwealth  v.  Painter,  10  Pa.  St..  214,  1849; 
Smith  v.  McCarthy,  56  Pa.  St.  359.  Where  the  authority  to  act  depends 
upon  the  prior  sanction  of  "  a  majority  of  the  qualified  voters  "  residing  in  the 
the  corporation,  the  presumption  is,  that  all  who  vote  are  legal  voters ;  and 
the  better  view  probably  is,  that  those  who  do  not  vote,  acquiesce  in  the 
result,  and  that  a  majority  of  those  actually  voting  is  sufficient,  though  in 
point  of  fact,  it  may  not  be  a  majority  of  all  who  would  be  entitled  to  vote. 
State  v.  Binder,  38  Mo.  450,  1866 ;  State  v.  Mayor,  &c.  37  Mo.  270.  But  com- 
pare State  v.  Winkelmeier,  35  Mo.  103,  which  construes  such  language  to 
require  a  "  majority  of  all  the  legal  voters  of  the  city,  and  not  merely  of  all 
who  might,  at  a  particular  time,  choose  to  vote  upon  it."  See  Damon  v. 
Granby,  2  Pick.  345,  355,  1824,  and  chapter  on  Corporate  Meetings,  post. 

2  Corning  v.  Greene,  23  Barb.  33,  1856. 

3  1  Post,  Chap.  IV.  New  York  constitution,  1846,  Art.  VIII.  Sec.  1 ;  Illi- 
nois constitution,  1847,  Art.  X.  Sec.  1 ;  see,  also,  new  constitution,  1870 ; 
Michigan  constitution,  1850,  Art.  XV.  Sec.  1 ;  California  constitution,  1849, 
Art.  IV.  Sec.  31 ;  construed  Bailroad  Co.  v.  Plumas  Co.  37  Cal.  354 ;  Minne- 
sota constitution,  1857,  Art.  X.  Sec.  2  ;  Tierney  v.  Dodge,  10  Minn.  171 ; 
12  ib.  41  ;  Oregon  constitution,  1857,  Art.  XI.  Sec.  2;  Louisiana  consti- 
tution, 1864,  Title  VII.  Art.  CXXI. ;  Nevada  constitution,  1864,  Art.  VIII. 
Sec.  1 ;  construed,  Virginia  City  v.  Mining  Co.  2  Nev.  86.  In  Missouri  it  is 
provided  that  no  municipal  corporation  shall  be  created  by  special  act,  ex- 
cept cities  of  at  least  5,000  inhabitants,  the  special  act  to  be  approved  by  a 
vote  of  the  inhabitants.    Constitution  1867,  Art.  VIII.  Sec.  5. 

4  Iowa  constitution,  1857,  Art.  III.  Sec.  30,  Von  Phul  v.  Hammer,  29  Iowa, 
222  ;  Florida  constitution,  1865,  Art.  IV.  Sec.  20 ;  Nebraska  constitution,  Art. 
VIII.  Sees.  1  and  2.  By  the  new  constitution  of  Illinois,  special  legislation  is 
forbidden  "  incorporating  cities,  towns,  or  villages,  or  changing  or  amending 
the  charter  of  any  town,  city,  or  village."    Kansas  constitution,  Art.  XII. 

9 


66  MUNICIPAL    CORPORATIONS.  [CH.  III. 

rights  are  protected  by  constitutional  provisions,  express  or 
implied,  they  are  removed  from  legislative  control,  but  no  fur- 
ther, as  we  shall  see  in  a  subsequent  chapter.  Although  the 
constitution  of  a  state  may  recognize  the  municipal  corpora- 
tion of  an  important  city  by  fixing  the  number  of  certain  offi- 
cers, and  providing  for  their  election,  &c,  yet  this  does  not 
make  the  charter  of  the  city  a  constitutional  charter  confer- 
ring powers  beyond  the  control  of  the  legislature.1 

Sees.  1  and  5 ;  construed,  Wyandotte  City  v.  Wood,  5  Kansas,  603  ;  Achison  v. 
Barlow,  4  ib.  124.  The  constitution  of  Ohio  is  as  follows  :  "  The  general  as- 
sembly shall  provide  for  the  organization  of  cities  and  incorporated  villages 
by  general  laws,  and  restrict  their  power  of  taxation,  assessment,  borrowing 
money,  contracting  debts,  and  loaning  their  credit,  so  as  to  prevent 
the  abuse  of  such  power."  Constitution  A.  D.  1851,  Art.  XIII.  Sec.  6.  Un- 
der this  section  the  legislature,  by  the  Towns'  and  Cities'  Act  of  May  3, 
1852  (Swan  &  Critchf.  Stats.  1497),  undertook  to  provide  for  the  government 
of  all  such  places  by  a  general  statute.  Thomas  v.  Ashland,  12  Ohio  St.  124. 
An  act  applying  to  all  cities  of  the  first  class  containing  less  than  one  hun- 
dred thousand  inhabitants,  is  not  in  conflict  with  the  provision  of  the  con- 
stitution which  requires  all  laws  of  a  general  nature  to  have  a  uniform  op- 
eration throughout  the  state.  Welker  v.  Potter,  18  Ohio  St.  85,1868;  see 
also  Lafayette  v.  Jenners,  10  Ind.  70,  80,  1857. 

1  Baltimore  v.  Board  of  Police,  15  Md.  376,  1859  ;  see  also  Paterson  v.  So- 
ciety, &c.  4  Zabr.  (N.  J.)  385, 1854.  In  People  v.  Draper,  15  N.  Y.  561,  Brown, 
J.,  says  :  "  When  the  present  constitution  was  formed,  the  entire  territory 
of  the  state  was  separated,  and  appropriated  by  its  civil  divisions,  its  coun- 
ties, cities,  and  towns.  These  civil  divisions  are  coeval  with  the  govern- 
ment. The  state  has  never  existed  a  moment  without  them.  All  our 
thoughts  and  notions  of  civil  government  are  inseparably  associated  with 
counties,  cities,  and  towns.  They  are  permanent  elements  in  the  frame  of 
government ;  they  are  institutions  of  the  state,  durable  and  indestructible 
by  any  power  less  than  that  which  gave  being  to  the  organic  law.  They 
are,  however,  subject  to  control  and  regulation  by  the  legislature.  It  may 
enlarge  or  circumscribe  their  territorial  limits,  increase  or  diminish  their 
numbers,  separate  them  into  parts,  and  annex  some  of  the  parts  to  parts  of 
others ;  but  they  must  still  assume  the  form  and  be  known  and  governed 
only  as  counties,  cities,  or  towns.  The  state  at  large  is,  and  ever  has  been, 
an  aggregate  of  these  local  bodies."  To  same  effect,  in  same  case,  ib.  541, 
per  Denio,  C.  J.  See  also  People  v.  Morrell,  21  Wend.  563  (division  of  coun- 
ties) ;  ante,  pp.  17-22.  In  People  v.  Hurlburt,  decided  by  the  Supreme  Court 
of  Michigan,  in  1871,  and  not  yet  reported,  this  subject  is  largely  and  learn- 
edly examined  by  Mr.  Justice  Cooky,  who,  conceding  to  the  state  full 
authority  to  shape  and  control  municipal  organizations  at  its  will,  neverthe- 
less maintained  that  there  were,  in  the  constitution  of  that  state,  both  ex- 
press and  implied  restrictions  upon  the  legislative  dominion  over  munici- 
pal institutions,  and  that  local  governments,  and  the  right  of  the  people  to 


CH.  III.]    CREATION  AND  GRADES  OF  PUBLIC  CORPORATIONS.  67 

§  25.  A  constitutional  provision  that  two-thirds  of  the  gen- 
eral assembly  "  shall  be  requisite  to  every  bill  creating,  contin- 
uing, altering,  or  renewing  any  body  politic  or  corporate,"  was 
held  by  a  majority  of  the  court  of  errors,  reversing  the  ma- 
jority view  of  the  supreme  court  in  the  same  case,  to  extend 
to  public  and  municipal,  as  well  as  private,  corporations.1 

§  26.  Under  a  constitution  which  provides  that  "  in  all 
cases  where  a  general  law  can  be  made  applicable,  no  special 
law  shall  be  enacted,"  the  better  view  is,  that  it  is  for  the  leg- 
islature to  determine  whether  their  purpose  can  or  cannot  be 
expediently  effected  by  a  general  law,  and  a  special  act,  as,  for 
example,  one  providing  for  the  location  of  the  county  seat  of 
a  specified  county,  will  not  be  held  invalid  by  the  courts.2 

§  27.  The  constitutions  of  several  of  the  states  contain, 
substantially,  this  provision,  derived  from  the  constitution  of 
New  York:  "It  shall  be  the  duty  of  the  legislature  to  pro- 
vide for  the  organization  of  cities  and  incorporated  villages, 
and  to  restrict  their  power  of  taxation,  assessment,  borrowing 
money,  contracting  debts,  and  loaning  their  credit,  so  as  to  prevent 
abuses  in  assessments,  and  in'  contracting  debts  by  such  mu- 

thein  were  secured  by  the  constitution,  and  did  not  exist  by  the  favor  and 
at  the  mere  pleasure  of  the  legisLiture.  And  in  the  same  case  the  court  de- 
cided, under  a  special  provision  of  the  constitution  of  the  state,  elsewhere 
noticed,  that  the  legislature  could  not  appoint,  for  a  city  corporation,  offi- 
cers whose  duties  were  purely  local  and  strictly  municipal.  The  discus- 
sions by  all  of  the  judges  are  unusually  interesting.    Ante,  p.  20,  et  seq. 

1  Purdy  i'.  People,  4  Hill  (N.  Y.)  384,  1842 ;  reversing,  2  Hill,  31.  What  is 
an  alteration  within  this  provision  :  Corning  v.  Green,  23  Barb.  33  ;  Smith 
v.  Helmer,  7  Barb.  416 ;  Morris  v.  People,.  3  Denio,  381.  Where  a  constitu- 
tion requires  that  acts  of  incorporation  shall  have  "  the  assent  of  at  least 
two-thirds  of  each  house,''  the  word  house  means  the  members  present 
doing  business — these  being  a  quorum  —  and  not  a  majority  of  all  the 
members  elected.     Southworth  v.  Railroad  Co.  2  Mich.  287. 

"  State  v.  Johnson,  1  Kansas,  178,  1862  ;  contra,  ex  parte  Pritz,  9  Iowa,  30, 
1859,  where  a  special  act  amending  the  charter  of  a  city  was  held  invalid  be- 
cause all  such  laws  were,  by  the  constitution  of  the  state,  required  to  be, 
and  could  be,  made  general.  Von  Phul  v.  Hammer,  29  Iowa,  222.  It  is  for 
the  legislature,  and  not  the  courts,  to  determine -when  a  general  law  can  be 
made  applicable.  Gentile  v.  State,  29  Ind.  409,  overruling  Thomas  v.  Board 
of  Commissioners,  5  Ind.  4  ;  Longworth's  Executors  v.  Evansville,  32  Ind. 
322  ;  Cooley,  Const.  Lim.  129,  note. 


68  MUNICIPAL   CORPORATIONS.  [CH.  HI. 

nicipal  corporations."1  This  obviously  enjoins  upon  the 
legislature  the  duty  of  providing  suitable  and  proper  restric- 
tions upon  the  enumerated  powers,  but  in  what  these  restric- 
tions shall  consist,  and  how  they  shall  be  imposed,  are  subjects 
left  to  the  discretion  or  sense  of  duty  of  the  legislative  de- 
partment, with  the  exercise  of  which  the  courts  cannot  inter- 
fere.2 The  Supreme  Court  of  "Wisconsin,  in  the  case  cited  in 
the  note,  holds,  to  some  extent,  a  contrary  view,  but  its  judg- 
ment was,  in  effect,  although  not  in  terms,  overruled  by  the 
Supreme  Court  of  the  United  States,  and  in  its  full  extent  is 
not  in  accord  with  the  view  elsewhere  taken  in  the  state 
courts.3 

1  New  York  constitution  1846,  Art.  VIII.  Sec.  9 ;  Wisconsin  constitution 

1848,  Art.  XI.  Sec.  3;  Michigan  constitution  1859,  Art.  XII.  Sec.  13 ;  Oregon 
constitution  1857,  Art.  XI.  Sec.  5 ;  Kansas  constitution  1859,  Art.  XII.  Sec. 
5;  see  Paine  v.  Spratley,  5  Kansas,  525;  Nevada  constitution  1864,  Art.  VIII. 
Sec.  8;  Nebraska  constitution,  Art.  VIII.  Sec.  4;   California  constitution 

1849,  Sec.  37;  Ohio  constitution  1851,  Art.  XIII.  Sec.  6.  See,  also,  chapters 
relating  to  Contracts  and  Taxation,  post. 

2  The  failure  of  the  legislature  to  perform  the  duty  relative  to  restricting 
the  power  of  taxation,  &c,  enjoined  by  the  constitutional  provision  above 
cited,  "may,"  says  Ranney,  J.,  in  Hill  v.  Higdon,  5  Ohio  St.  248,  "be  of  very 
serious  import,  but  lays  no  foundation  for  judicial  correction."  See  Maloy 
v.  Marietta,  11  Ohio  St.  636,  638,  where  this  view  is  left  open,  but  holding 
that  the  legislature  alone  has  the  power  to  determine  the  mode  and  measure 
of  the  restriction  to  be  imposed.  It  was  also  left  open  in  the  People  v. 
Mahaney,  13  Mich.  481,  but  this  case  illustrates  what  is  a  sufficient  restric- 
tion on  the  power  of  taxation  to  meet  the  constitutional  requirement.  See 
also  Cooley,  Const.  Lim.  518;  Railroad  Co.  v.  Connelly,  10  Ohio  St.  165.  To 
the  effect  that  the  constitutional  provision  quoted  in  the  text  does  not  take 
away,  but  recognizes,  the  discretion  of  the  legislature  in  conferring  powers 
of  the  enumerated  character  upon  municipal  corporations,  and  that  such 
discretion  is  not  reviewable  by  the  courts,  see  Bank  of  Rome  v.  Rome,  18 
N.  Y.  38,  1858;  Benson  v.  Mayor,  &c,  of  Albany,  24  Barb.  248,  1857;  Clarke 
v.  Rochester,  ib.  446 ;  Grant  v.  Courier,  ib„  232. 

8  Foster  v.  Kenosha,  12  Wis.  616,  1860.  The  legislature  cannot,  consist- 
ently with  this  restriction,  confer  upon  a  municipal  corporation  an  unlim- 
ited :  power  to  levy  taxes  and  raise  money  for  extra-municipal  purposes, 
such  as  aiding  railroad  companies,  and  an  amendment  to  the  charter  of  a 
city  authorizing  its  council  "to  levy  and  collect  special  taxes  for  any  pur- 
pose (aside  from  what  may  be  specially  provided  for  in  the  city  charter), 
which  may  be  considered  essential  to  promote  or  secure  the  common  in- 
terests of  the  city,  or  borrow,  on  the  corporate  credit  of  the  city,  any  sum 
of  money  at  a  rate  of  interest  not  exceeding  ten  per  cent,"  on  obtaining 


CH.  III.]   CREATION  AND  GRADES  OE  PUBLIC  CORPORATIONS.  69 

§  28.  Many  of  the  state  constitutions  contain,  in  substance, 
a  provision  that  no  legislative  act  shall  embrace  more  than  one  ob- 
ject, to  be  expressed  in  its  title.  This  provision  has  been  fre- 
quently construed  to  require  only  the  general  or  ultimate 
object  to  be  stated  in  the  title,  and  not  the  details  by  which 
the  object  is  to  be  attained.  Any  provision  calculated  to 
carry  the  declared  object  into  effect  is  unobjectionable, 
although  not  specially  indicated  in  the  title.  Thus,  where  a 
constitution  provides  that  no  bill  or  act  shall  pass  containing 
any  matter  different  from  what  is  expressed  in  the  title 
thereof,  an  act,  the  title  of  which  declares  it  to  be  for  the  better 
regulation  of  a  certain  town  (naming  it),  or  to  amend  or  enlarge  the 
•powers  of  the  corporation  thereof,  is  sufficient,  without  enumer- 
ating the  particulars  in  which  the  powers  are  enlarged  or  ex- 
tended.1 So  a  provision  in  an  act  entitled  merely,  "  An  act 
to  amend  the  act  incorporating  the  city  of  M,"  extending  the 
city  limits,  does  not  conflict  with  the  constitutional  require- 
ment that  "every  law  shall  embrace  but  one  object,  which 
shall  be  expressed  in  its  title."2 

the  previous  sanction  of  a  majority  of  the  voters  of  the  city,  is  void,  and 
the  requirement  of  the  sanction  of  the  voters  is  not  a  restriction  on.  the 
power  to  levy  taxes  or  contract  debts,  within  the  meaning  of  the  constitu- 
tion, the  court  .being  of  opinion  that  the  duty  of  imposing  the  limitation 
rests  on  the  legislature.  Ib.  But  see  Campbell  v.  Kenosha,  5  Wall.  194, 
1866 ;  City  v.  Lamson,  9  "Wall.  477,  1869 ;  and  the  authorities  cited  in  the  last 
note. 

Other  restrictions  upon  the  power  to  contract  debts:  see  chapters  on 
Charters  and  Contracts,  post. 

1  Green  v.  Mayor,  R.  M.  Charlt.  (Geo.)  368,  1832,  per  Law,  J. ;  Mayor  v. 
State,  4  Geo.  26;  Hill  v.  Decatur,  22  Geo.  203. 

*  Morford  v.  linger,  8  Iowa,  82, 1859 ;  Davis  v.  "Woolnough  (act  establishing 
city  court),  9  ib.  104;  S.  P.  St.  Paul  v.  Coulter,  12  Minn.  41,  50,  1866.  In 
determining  whether  a  law  be  in  conflict  with  this  provision  of  the  consti- 
tution, the  unity  of  the  object  is  to  be  looked  for  in  the  ultimate  end  to  be 
attained,  and  not  in  the  details  leading  to  that  end.  State,  &c.  v.  Co.  Judge, 
2  Iowa,  280;  People  v.  Mahaney,  13  Mich.  481,  1865;  People'  v.  Hurlburt, 
Mich.  Supreme  Court,  1871.  Construction  of  similar  constitutional  pro- 
vision: Arnoult  v.  New  Orleans,  11  La.  An.  54;  Kathman  v.  New  Orleans, 
ib.  145;  People  v.  Mellen,  32  111.  181;  Railroad  Co.  v.  Gregory,  15  111.  21; 
Davis  v.  State  (inspection  act  for  Baltimore),  7  Md.  151;  Annapolis  v.  State, 
30  Md.  112;  Lafou  v.  Dufrocq,  9  La.  An.  350;  Ottawa  v.  People,  48  111.  233, 
1868.    And  see,  generally,  on  this  subject,  Cooley  Const.  Lim.  81, 141. 


70  MUNICIPAL   CORPORATIONS.  [CH.  IV. 


CHAPTER  IV. 

Public  and  Private  Corporations  Distinguished — Legisla- 
tive Authority  and  its  Limitations. 

§  29.  A  fundamental  division  of  corporations  heretofore  ad- 
verted to,  is  into  public  and  private.1  The  importance  of  this 
distinction  cannot  be  too  much  emphasized,  since  upon  it  are. 
based  the  legal  principles  which  so  broadly  distinguish  the  two 
classes  of  corporations.     With  private  corporations  the  present 

1  Ante,  Chapter  II.  In  Mills  v.  Williams,  11  Ire.  (Nor.  Car.),  Law,  558, 
1854,  Pearson,  J.,  commenting  on  the  common  divisions  of  corporations, 
says :  "  The  purpose  in  making  all  corporations  is  the  accomplishment  of 
some  public  good.  Hence,  the  division  into  public  and  private  has  a  ten- 
dency to  confuse  and  lead  to  error  in  investigation ;  for,  unless  the  public 
are  to  be  benefited,  it  is  no  more  lawful  to  confer  ''  exclusive  rights  and 
privileges'  upon  an  artificial  body,  than  upon  a  private  citizen.  The  sub- 
stantial distinction  is  this :  Some  corporations  are  created  by  the  mere  will 
of  the  legislature,  there  being  no  other  party  interested  or  concerned.  To  this 
body  a  portion  of  the  power  of  the  legislature  is  delegated,  to  be  exercised 
for  the  public  good,  and  subject  at  all  times  to  be  modified,  changed,  or  an- 
nulled. Other  corporations  are  the  result  of  contract.  The  legislature  is 
not  the  only  party  interested;  for,  although  it  has  a  public  purpose  to  be 
accomplished,  it  chooses  to  do  it  by  the  instrumentality  of  a  second  party. 
These  two  make  a  contract.  The  expectation  of  benefit  to  the  public  is  the 
moving  consideration  on  one  side ;  that  of  expected  remuneration  for  the 
outlay  is  the  consideration  on  the  other.  It  is  a  contract,  and,  therefore, 
cannot  be  modified,  changed,  or  annulled  without  the  consent  of  both  par- 
ties. Counties  are  an  instance  of  the  former,  railroad  and  turnpike  com- 
panies of  the  latter,  class  of  corporations.''  This  recognizes  the  substantial 
difference  between  the  two  classes  of  corporations,  and  is,  in  effect,  a  criti- 
cism upon  the  names  by  which  they  are  distinguished. 

According  to  the  view  of  the  supreme  court  of  California,  corporations 
should  be  divided  into  three  classes,  to-wit :  Public  municipal  corporations, 
the  object  of  which  is  to  promote  the  public  interest ;  corporations  tech- 
nically private,  but  of  a  quasi  public  character,  having  in  view  some  public 
enterprise  in  which  the  public  interests  are  involved,  such  as  railroad,  turn- 
pike, and  canal  companies ;  and  corporations  strictly  private.  •  Miner's 
Ditch  Company  v.  Zellerbach,  37  Cal.  543,  1869.  The  opinion  of  Sawyer,  C. 
J.,  in  this  case,  is  able  and  instructive.  The  author  prefers  the  ordinary 
division  of  corporations  into  public  (which  includes  municipal)  and  private. 


CH.  IV.  J    LEGISLATIVE  CONTROL EXTENT  AND  LIMITATIONS.  71 

work  has  no  other  concern  than  to  point  out  wherein  they  dif- 
fer from  those  which  are  public.  Both  classes  are  alike  created 
by  the  legislature,  and  in  the  same  way — by  special  charter 
or  under  general  incorporation  acts.  Private  corporations  are 
created  for  private,  as  distinguished  from  governmental,  pur- 
poses, and  they  are  not,  in  contemplation  of  law,  public  be- 
cause it  may  have  been  supposed  by  the  legislature  that  their 
establishment  would  promote,  either  directly  or  consequentially, 
the  public  interest.  They  cannot  be  compelled  to  accept  a 
charter  or  incorporating  act.  The  assent  of  the  corporation  is 
necessary  to  make  the  incorporating  statute  operative.  But 
when  assented  to,  the  legislative  grant  is  irrevocable,  and  it 
cannot,  without  the  consent  of  the  corporation,  be  impaired  or 
destroyed  by  any  subsequent  act  of  legislation,  unless  the  right 
to  do  so  was  reserved  at  the  time.  The  celebrated  Dartmouth 
College  Case,  by  its  construction  of  the  federal  constitution,  in- 
corporated, wisely  or  otherwise,  into  American  jurisprudence 
the  principle  which  has  been  attended  with  such  important 
practical  consequences,  namely,  that  privileges  and  franchises 
granted  by  legislative  act  to  a  private  corporation,  when  ac- 
cepted, constitute  a  contract  within  the  meaning  of  the  clause 
of  the  constitution,  which  secures  the  inviolability  of  contracts 
by  declaring  that  no  state  shall  pass  any  law  impairing  their 
obligation ;  and  hence  a  law  materially  altering  the  charter  of 
such  a  corporation  is  unconstitutional,  unless  the  power  to  alter 
it  was  reserved  when  the  grant  was  made. 

§  30.  Public  corporations  are  called  into  being  at  the  pleas- 
ure of  the  state,  and  while  the  state  may,  it  need  not,  obtain 
the  consent  of  the  people  of  the  locality  to  be  affected.  The 
charter  or  incorporating  act  of  a  municipal  corporation  is  in 
no  sense  a  contract  between  the  state  and  the  corporation, 
although,  as  we  shall  see,  private  or  vested  rights  in  favor  of 
third  persons,  if  not  in  favor  of  the  corporation,  may  arise 
under  it.  Public  corporations  within  the  meaning  of  this  rule 
are  such  as  are  established  for  public  purposes  exclusively  — 
that  is,  for  purposes  connected  with  the  administration  of  civil 
or  local  government  —  and  corporations  are  public  only  when, 
in  the  language  of  Chief  Justice  Marshall,  "  the  whole  interests 
and  franchises  are  the  exclusive  property  and  domain  of  the 


72  MUNICIPAL   CORPORATIONS.  [CH.  IV. 

government  itself,"  such  as  quasi  corporations  (so-called),  coun- 
ties and  towns  or  cities  upon  which  are  conferred  the  powers 
of  local  administration.  With  the  exception  of  certain  consti- 
tutional limitations  presently  to  be  noticed,  the  power  of  the 
legislature  over  such  corporations  is  supreme  and  transcendent: 
it  may  erect,  change,  divide,  and  even  abolish,  at  pleasure,  as 
it  deems  the  public  good  to  require.1    And  it  may  be  here  ob- 

1  Dartmouth  College  v.  Woodward,  4  Wheat.  518, 1819 ;  Allen  v.  McKean, 
1  Sumner,  276,  1833  (the  Bowdoin  College  Case  elaborately  considered  by 
Story,  J.) ;  People  v.  Morris,  13  Wend.  325,  1835.  In  this  case  the  defendant 
insisted  that  the  rights  and  privileges  conferred  upon  the  village  of  Ogdens- 
burg  by  the  act  incorporating  it  were  vested  rights,  and  could  not  be  impaired 
by  subsequent  legislation.  But,  said  Nelson,  J.,  with  his  usual  clearness : 
"  It  is  an  unsound  and  even  absurd  proposition  that  political  power  con- 
ferred by  the  legislature  can  become  a  vested  right  as  against  the  government, 
in  any  individual  or  body  of  men."  S.  P.  Penobscot  Boom  Corporation  v. 
Lawson,  16  Maine,  224;  Yarmouth  v.  North  Yarmouth,  34  Maine,  411,  1852; 
Story  Com.  Const.  Sees.  1385,  1388 ;  North  Yarmouth  v.  Skillings,  45  Maine, 
133, 1858  ;  Girard  v,  Philadelphia,  7  Wall.  1,  1868 ;  ante,  p.  28.  "  A  munici- 
pal corporation,  in  which  is  vested  some  portion  of  the  administration  of  the 
government,  may  be  changed  at  the  will  of  the  legislature.  Such  is  a  pub- 
lic corporation,  used  for  public  purposes."  Per  McLean,  J.,  in  State  Bank  v. 
Knoop,  16  How.  U.  S.  369, 380,  1853.  "  Public  or  municipal  corporations  are 
established  for  the  local  government  of  towns  or  particular  districts.  The 
special  powers  conferred  upon  them  are  not  vested  rights  as  against  the 
state,  but,  being  wholly  political,  exist  only  during  the  will  of  the  general 
legislature ;  otherwise,  there  would  be  numberless  petty  governments  exist- 
ing within  the  state  and  forming  part  of  it,  but  independent  of  the  control 
of  the  sovereign  power.  Such  powers  may  at  any  time  be  repealed  or  abro- 
gated by  the  legislature,  either  by  a  general  law  operating  upon  the  whole 
state,  or  by  a  special  act  altering  the  powers  of  the  corporation."  Sloan  v. 
State  (implied  modification  of  charter  as  to  vending  liquor  by  subsequent 
general  law),  8  Blackf.  (Ind.)  361,  1847,  per  Smith,  J.;  approving,  People  v. 
Morris,  13  Wend.  325 ;  Armstrong  v.  Commissioners  (as  to  removal  of 
county  seat),  4  Blackf.  (Ind.)  208,  1836. 

As  to  extent  of  legislative  control,  and  the  distinction  between  public  and 
private  corporations,  see,  also,  Peoples.  Wren  (division  of  a  county),  4  Scam. 
(111.)  273 ;  Coles  v.  Madison  County,  Breese  (111.)  120 ;  Bush  v.  Shipman,  4 
Scam.  (111.)  190;  Holliday  v.  People,  5  Gilm.  (111.)  216;  Richland  County  v. 
Laurence  County,  12  111.  8 ;  Trustees,  &c.  v.  Tatman,  13  111.  30 ;  Gutzweller 
v.  People,  14  111.  142  ;  State  v.  Mayor,  R.  M.  Charlt.  (Geo.)  250 ;  State,  &c.  », 
St.  Louis  County  Court,  34  Mo.  546 ;  Purdy  v.  People,  4  Hill  (N.  Y.)  385 
Morey  v.  Newfane,  8  Barb.  645 ;  Lloyd  «.  Mayor,  &c.  of  New  York,  5  N.  Y 
(1  Seld.)  369 ;  Lowler  v.  Same,  7  Abb.  Pr.  R.  248 ;  Green  v.  Same,  5  ib.  503 
Aurora  v.  West,  9  Ind.  74 ;  Plymouth  v.  Jackson,  15  Pa.  St.  44 ;  Louisville  v. 
Commonwealth,  1  Duvall  (Ky.)  295;  Tinsman  v.  Railroad  Company,  2 


OH.  IV.]    LEGISLATIVE  CONTROL EXTENT  AND  LIMITATIONS.  73 

served  that  the  extent  of  legislative  control  over  public  or 
municipal  corporations  is  not  impaired  by  the  circumstance 
that  the  charter  is  granted  in  the  same  act  that  creates  a  pri- 
vate corporation,  whose  rights  cannot  be  changed  without  their 
consent.1  "Where,  in  incorporating  a  gas  company,  the  legisla- 
ture reserved  the  power  to  alter,  modify,  or  repeal  the  charter, 
it  is  competent  for  it,  by  subsequent  legislation,  to  subject  the 
company  to  supervision  and  control,  and  to  confer  the  power 
upon  the  municipal  corporation  in  which  the  works  of  the  com- 
pany are  erected  to  regulate  the  price  of  gas,  and  ordinances 
duly  passed  in  pursuance  of  such  power  are  binding  upon  the 
company.2 

§  31.  Some  of  the  leading  differences  between  public  and  private 
corporations  are  clearly  stated  in  a  case  decided  in  New  Jersey. 
In  an  action  by  a  riparian  proprietor  against  a  canal  company, 
for  obstructing  a  water  course,  the  company  insisted  that  it 
was  not  liable,  because  the  work  was  authorized  by  its  charter; 
that  the  acts  it  did  were  legal;  that  the  injury  complained  of 
was  consequential ;  that  the  enterprise  was  a  public  work,  de- 
signed for  public  purposes,  and  that  the  company,  in  executing 
it,  acted  as  the  public  agents  of  the  state.  But  the  court  held 
that  the  company  was  not  a  public  corporation.  On  this  point 
Nevius,  J.,  the  organ  of  the  court,  observed:  "Public  corpora- 
tions are  political  corporations,  or  such  as  are  founded  wholly 
for  public  purposes,  and  the  whole  interest  in  which  is  in  the 
public.  The  fact  of  the  public  having  an  interest  in  the  works 
or  the  property  or  the  object  of  a  corporation,  does  not  make 
it  a  public  corporation.     All  corporations,  whether  public  or 

Dutch.  (N.  J.)  148 ;  Marietta  v.  Fearing,  4  Ohio,  427 ;  State  v.  Mayor,  &c.  24 
Ala.  701 ;  Governor  v.  McEwen,  5  Humph.  (Tenn.)  241 ;  Grogan  v.  San  Fran- 
cisco, 18  Cal.  590 ;  Darlington  v.  Mayor,  &c.  of  New  York,  31  N.  Y.  164 ;  Sav- 
ings Fund  Society  v.  Philadelphia,  31  Pa.  St.  175,  185;  Philadelphia  a.  Field, 
58  Pa.  St.  320 ;  Erie  v.  Canal  Company,  59  Pa.  St.  174 ;  Dunsmore's  Appeal, 
52  Pa.  St.  374 ;  Blanding  ®.  Burr,  13  Cal.  343,  1859 ;  People  v.  Hill,  7  Cal.  97, 
1857. 

1  Patterson  o.  Society,  &c.  4  Zabr.  (N.  J.)  385,  1854.    See,  also,  Baltimore  v. 
Board  of  Police,  15  Md.  376,  1859. 

2  State  v.  Cincinnati  Gas  Company,  18  Ohio  St.  262,  1868.    See,  also,  Nor- 
wich Gaslight  Company,  v.  Norwich  City  Gas  Company,  25  Conn.  19,  1856. 

10 


74  MUNICIPAL   CORPORATIONS.  [CH.  IV. 

private,  are,  in  contemplation  of  law,  founded  upon  the  princi- 
ple that  they  will  promote  the  interest  or  convenience  of  the 
public.  A  bank  is  a  private  corporation,  yet  it  is,  in  the  eye 
of  the  law,  designed  for  public  benefit.  A  turnpike  or  a  canal 
company  is  a  private  company,  yet  the  public  have  an  interest 
in  the  use  of  their  works,  subject  to  such  tolls  and  restrictions 
as  the  charter  has  imposed.  The  interest,  therefore,  which  the 
public  may  have  in  the  property  or  in  the  objects  of  a  corpora- 
tion, whether  direct  or  incidental  (unless  it  has  the  whole  in- 
terest), does  not  determine  its  character  as  a  public  or  private 
corporation.  In  the  present  case,  whatever  may  have  been  the 
objects  of  the  corporation,  whether  to  erect  a  public  navigable 
highway,  or  to  improve  the  navigation  of  the  Raritan  river,  or 
whether  the  public  have  a  right  to  the  use  and  enjoyment  of 
these  improvements,  when  made,  or  not,  the  company  are  essen- 
tially a  private  company,  and  are  not  the  agents  of  the  state. 
Their  works  are  not  constructed  by  the  requirement  of  the 
state,  nor  at  the  expense  of  the  state,  nor  does  the  stock  belong 
to  the  state,  nor  is  the  state  answerable  for  the  lands  or  mater- 
ials used  in  the  construction  of  these  works,  or  responsible  for 
the  debts  of  the  company,  or  for  injuries  committed  by  them 
in  the  execution  of  their  work.  The  state  could  not  compel 
the  company  to  construct  this  canal  or  improve  the  navigation 
of  the  river;  it  has  permitted  them  to  do  so  at  their  own  re- 
quest. The  company  might  have  abandoned  the  work  when- 
ever they  saw  fit;  they  may  now  abandon  it  without  responsi- 
bility to  the  state.  The  corporation  itself,  the  property  of  the 
corporation,  the  object  of  the  corporation  are  essentially  pri- 
vate, subject  only  to  public  use,  under  their  own  restrictions, 
and  from  which  use  the  company  are  to  derive  the  profits."1 

1  Nevius,  J.,  Ten  Eyck  v.  Canal  Company,  3  Harrison  (N.  J.)  200,  203, 1841 ; 
approved,  Hanson  v.  Vernon,  27  Iowa,  28,  53,  1869. 

In  an  elaborate  and  well-considered  opinion,  in  which  the  court  of  ap- 
peals of  Maryland  held  the  regents  of  the  university  of  that  state  to  be  a 
private  corporation,  though  its 'ends  were  public,  Buchanan,  C.  J.,  delivering 
the  judgment  of  the  court,  thus  defines  a  public  corporation :  "  A  public  cor- 
poration is  one  that  is  created  for  political  purposes,  with  political  powers, 
to  be  exercised  for  purposes  connected  with  the  public  good  in  the  admin- 
istration of  civil  government;  an  instrument  of  the  goyernment  subject  to 
the  control  of  the  legislature  and  its  members,  officers  of  the  government, 


CH.  IV.]  LEGISLATIVE  CONTROL EXTENT  AND  LIMITATIONS.     75 

§  32.  The  adjudged  cases  present  some  contrariety  of  opin- 
ion respecting  the  scope  of  legislative  authority  over  municipal 
corporations,  or  rather,  respecting  the  question  how  far  such 
corporations,  viewed  as  legal  personalities,  are  within  the  op- 
eration or  protection  of  the  usual  constitutional  restraints 
upon  legislative  power.  The  present  chapter  will  be  devoted 
to  a  consideration  of  this  subject,  and  it  can,  perhaps,  be  most 
satisfactorily  presented  by  viewing  it  in  the  light  of  actual  ad- 
judications, accompanied  with  such  observations  and  comment 
as  seem  to  be  suitable  and  necessary.  The  extent  of  the  au- 
thority of  the  legislature  over  public  corporations  is  strikingly 

for  the  administration  or  discharge  of  public  duties,  as  in  the  cases  of  cities, 
towns,  &c. ;  so  where  a  bank  is  created  by  the  government  for  its  own  uses, 
and  the  stock  belongs  exclusively  to  the  government,  it  is  a  public  corpora- 
tion ;  and  so  of  a  hospital  created  and  endowed  by  the  government  for  gen- 
eral purposes  of  charity."  Regents  of  University  v.  Williams,  9  Gill  & 
Johns.  (Md.)  365,  397,  1838.    See,  also,  Norris  v.  Trustees,  7  Gill  &  Johns.  7. 

Speaking  of  public  corporations,  and  the  relations  they  sustain  to  the  state, 
the  supreme  court  of  Louisiana  uses  this  language :  "  The  government  of 
cities  and  towns,  like  that  of  the  police  jury  of  parishes  (counties),  forms 
one  of  the  sub-divisions  of  the  internal  administration  of  the  state,  and  is 
absolutely  under  the  control  of  the  legislature.  The  laws  which  establish 
and  regulate  municipal  corporations  are  not  contracts,  but  ordinary  acts  of 
legislation,  and  the  powers  they  confer  are  nothing  more  than  mandates  of 
the  sovereign  power,  and  those  laws  may  be  repealed  or  altered  at  the  will 
of  the  legislature,  except  so  far  as  the  repeal  or  change  may  affect  the  rights 
of  third  persons  acquired  under  them.''  Police  Jury  i>.  Shreveport  (repeal 
of  corporate  ferry  right),  5  La.  An.  681,1850;  State  Bank  v.  Navigation  Com- 
pany (construction  of  charter),  3  ib.  294,  1848 ;  Reynolds  v.  Baldwin,  1  ib. 
162 ;  Haynes  ».  Municipality,  5  ib.  760 ;  Edgerton  v.  Municipality,  1  ib.  435 ; 
Board  v.  Municipality,  6  ib.  21,  1851. 

In  the  opinion  of  the  supreme  court  of  the  United  States,  holding  that 
the.  legislature  of  a  state  might  lawfully  repeal  or  discontinue  a  ferry  fran- 
chise granted  to  a  municipal  corporation,  it  is  remarked  that  towns  and 
cities,  "  which  are  public  municipal  and  political  bodies,  are  incorporated 
for  public,  and  not  private,  objects.  They  are  allowed  to  hold  privileges  or 
property  only  for  public  purposes.  The  members  are  not  shareholders, 
nor  joint  partners  in  any  corporate  estate,  which  they  can  sell  or  devise  to 
others,  or  which  can  be  attached  or  levied  on  for  their  debts.  Hence,  gen- 
erally, the  doings  between  them  and  the  legislature  are  in  the  nature  of 
legislation  rather  than  compact,  and  subject  to  all  the  legislative  conditions 
named,  and,  therefore,  to  be  considered  as  not  violated  by  subsequent  legis- 
lative changes.''  Per  Woodbury,  J.,  in  East  Hartford  v.  Hartford  Bridge 
Company,  10  How.  (U.  S.)  oil,  534, 1850.  See,  also,  Trustees  «.  Tatman,  13 
III.  30. 


76  MUNICIPAL   CORPORATIONS.  [CH.  IV. 

illustrated  by  an  important  case  decided  by  tbe  court  of  ap- 
peals of  tbe  state  of  Maryland.  Tbe  legislature  in  incorporat- 
ing a  railroad  company  made  it  its  duty  to  locate  its  road 
tbrougb  tbree  towns  specially  named,  and  provided,  that  if  it 
failed  to  do  so,  "  tben  and  in  tbat  case  said  company  shall  for- 
feit $1,000,000  to  tbe  state  of  Maryland  for  the  use  of  Wash- 
ington county."  Tbe  action  was  instituted  for  tbe  benefit  of  tbe 
county  to  recover  the  one  million  dollars,  it  being  alleged  tbat 
tbe  defendant  bad  not  constructed  its  road  in  the  manner  re- 
quired. Tbe  defendant  pleaded  that  since  the  last  continuance 
the  legislature  had  passed  an  act  repealing  that  portion  of  the 
charter  of  the  company  requiring  it  to  build  its  road  through 
said  towns,  and  specially  remitting  and  releasing  the  forfeiture  of 
$1,000,000.  The  leading  question,  which  was  argued  on  either 
side  by  distinguished  counsel,  was,  whether  the  provision  in 
favor  of  the  county  was  one  of  contract  (the  railroad  company 
having  assented  to  the  act),  and  hence  claimed  to  be  inviolable 
by  legislative  interference,  or  whether  it  was  one  of  penalty, 
and  therefore  subject  to  unlimited  legislative  control.  The 
court  held  the  latter  view  to  be  the  true  one,  and  that  the  de- 
fendant was  not  liable.  The  court  also  expressed  the  opinion 
that  if  it  should  be  treated  as  a  contract  made  by  tbe  state,  yet 
it  was  a  contract  for  the  benefit  of  one  of  its  counties,  to  which 
the  money,  if  collected,  would  belong,  in  its  political  and  pub- 
lie  capacity,  as  part  of  the  state,  and  that  such  a  contract  did 
not  come  within  the  meaning  of  that  provision  of  the  national 
constitution  which  prohibits  a  state  from  impairing  the  obliga- 
tion of  a  contract,  so  as  to  prevent  the  legislature  from  releas- 
ing it  at  pleasure,  or  discontinuing  an  action  brought  for  its 
enforcement  in  the  name  of  the  state.1 

§  33.     Questions   have  arisen  under  special   constitutional 
provisions  respecting  the  authority  of  the  legislature  over  mu- 

1  State  v.  Railroad  Co.  12  Gill  &  Johns.  (Md.)  399, 1842 ;  affirmed  on  error, 
3  How.  (U.  S.)  534,  1845.  A  public  corporation  has  no  vested  right  to  fines 
directed  to  be  paid  to  it,  and  the  legislature  may  release  them.  No  contract 
in  such  cases  is  thereby  violated,  for  none  exists.  Coles  v.  Madison  County, 
Breese  (111.)  115 ;  Holliday  v.  People,  5  Gilm.  (111.)  216 ;  Conner  v.  Bent,  1 
Mo.  235  ;  Rankin  v.  Beaird,  Breese  (111.)  123.  Effect  of  executive  pardon 
on  fines  going  to  county,  Holliday  v.  People,  5  Gilm.  (111.)  216. 


CH.  IV.]  LEGISLATIVE  CONTROL  —  EXTENT  AND  LIMITATIONS.     77 

nicipal  offices  and  officers.  And  here  it  is  important  to  bear  in 
mind  the  distinction  between  state  officers  —  that  is,  officers 
whose  duties  concern  the  state  at  large,  or  the  general  public, 
although  exercised  within  denned  territorial  limits  —  and  mu- 
nicipal officers,  whose  functions  relate  exclusively  to  the  par- 
ticular municipality.  The  administration  of  justice,  the  pres- 
ervation of  the  public  peace,  and  the  like,  although  confided  to 
local  agencies,  are  essentially  matters  of  public  concern ;  while 
the  enforcement  of  municipal  by-laws  proper,  the  establish- 
ment of  gas  works,  of  water  works,  the  construction  of  sewers, 
and  the  like,  are  matters  which  pertain  to  the  municipality,  as 
distinguished  from  the  state  at  large.1  The  constitution  of 
Michigan  enjoined  upon  the  legislature  to  "  provide  for  the 
incorporation  and  organization  of  cities  and  villages ;  "  gave 
it  authority  to  confer  upon  them  such  powers  of  a  local  legisla- 
tive and  administrative  character  as  it  should  deem  proper, 
and  contained  the  further  provision  that  "judicial  officers  of 
cities  and  villages  shall  be  elected,  and  all  other  [municipal] 
officers  shall  be  elected,  or  appointed,  at  such  time  and  in  such 
manner  as  the  legislature  may  direct ;  "  and  it  was  held  by 
the  Supreme  Court  of  the  state,  in  a  cause  that  underwent 
great  consideration,  and  in  which  the  judges  delivered  separ 
rate  opinions,  that  while  the  legislature  was  left  free  to  appoint 
officers  not  municipal,  such,  for  example,  as  a  board  of  police 
commissioners  in  and  for  a  city,  yet  that  it  was  restrained  by 
the  above-mentioned  provisions,  especially  by  the  one  last ' 
quoted,  from  itself  directly  appointing  municipal  officers, 
whose  duties  and  authority  were  plainly  and  exclusively  local, 
such  as  the  board  of  water  commissioners  and  board  of  sewer 
commissioners  for  a  particular  city.2 

1  People  v.  Hurlburt,  Supreme  Court  of  Michigan,  November  term,  1871, 
not  yet  reported.  The  distinction  mentioned  in  the  text  is  there  accurate- 
ly drawn,  and  clearly  stated  and  illustrated  in  the  admirable  opinion  of 
Campbell,  C.  J.    Ante,  p.  30.    See  chapter  on  Corporate  Officers,  post. 

2  People  v.  Hurlburt,  supra,  distinguished  from  People  v.  Mahaney,  13 
Mich.  481 ;  ante,  p.  20,  and  notes.  So,  under  the  constitution  of  Kentucky, 
which  contains  a  provision  that  "  officers  of  towns  and  cities  shall  be  elected 
for  such  terms,  and  in  such  manner,  and  with  such  qualifications,  as  may 
be  prescribed  by  law,"  and  "  shall  reside  within  their  respective  districts," 
it  was  held  that  the  legislature  could  not  authorize  the  governor  to  appoint 


78  MUNICIPAL   CORPORATIONS.  [CH.  IV. 

§  34.  And  it  has  elsewhere  been  several  times  determined 
that  the  legislature  may,  unless  specially  restricted  in  the  con- 
stitution, take  from  a  municipal  corporation  its  charter  powers 
respecting  the  police  and  their  appointment,  and  by  statute  itself  di- 
rectly provide  for  a  permanent  police  for  the  corporation,  under 
the  control  of  a  board  of  police,  not  appointed  or  elected  by  the 
corporate  authorities,  but  consisting  of  commissioners  named 
and  appointed  by  the  legislature.  And  a  provision  in  such  a 
law,  transferring  to  such  commissioners  for  the  purposes  of 
the  new  police,  the  use  of  the  police  telegraph,  station-houses, 
watch-boxes,  &c,  provided  by  the  corporation,  is  valid,  since 
it  only  takes  city  property  dedicated  to  a  particular  use,  and 
applies  it  to  the  same  purpose,  changing  only  the  agency  by 
which  the  use  is  directed ;  the  property  is  still  the  city's.1     So 

municipal  officers,  since  the  constitution  requires  that  they  shall  be  elected 
by  the  voters  of  the  town  or  city  (Speed  v.  Crawford,  3  Met.  [Ky.]  207, 1860), 
but  it  was  also  likewise  held  that  it  was  within  the  power  of  the  legislature 
to  pass  an  act  depriving  the  mayor  and  council  of  a  designated  city  of  the 
power  to  elect  the  police  force  thereof,  and  establishing,  instead,  a  board  of  - 
police  for  the  city  and  the  county  in  which  the  city  was  situate,  to  be  elected 
by  the  qualified  voters  of  the  city  and  county,  and  that  this  board,  thus 
elected,  should  select  and  enrol  the  permanent  police  force  of  the  city, 
which,  it  was  provided,  should  be  taxed  to  pay  them.  Police  Commission- 
ers v.  Louisville,  3  Bush  (Ky.)  597,  1868.  ' 

1  Baltimore  v.  Board  of  Police  (affirming  validity  of  the  Baltimore  Police 
Bill),  15  Md.  376,  1859.  There  is  nothing  in  the  maxim  that  "  Taxation  and 
representation  go  together,"  that  can  preclude  the  legislature  from  estab- 
lishing, in  a  city,  a  metropolitan  police  board,  with  power  to  estimate  the 
expenses  of  the  police,  and  compelling  the  city  authorities  to  raise,  by  tax- 
ation, the  amount  so  estimated.  Every  city  is  represented  in  the  state  leg- 
islature, and  it  is  for  that  body  to  determine  how  much  power  shall  be  con- 
ferred by  the  municipal  charters  which  it  grants.  People  v.  Mahaney,  13 
Mich.  481 ;  see,  also,  same  principle,  People  v.  Draper,  15  N.  Y.  532,  1857, 
where  the  act  to  establish  the  metropolitan  police  district  was  held  consti- 
tutional ;  Police  Commissioners  v.  Louisville,  3  Bush  597 ;  Diamond  v. 
Cain,  21  La.  An.  309,  18G9  ;  State  v.  Leovy,  ib.  538.  The  cases  concur  in 
holding  that  police  officers  are,  in  fact,  state  officers,  and  not  municipal,  al- 
though a  particular  city  or  town  be  taxed  to  pay  them.  An  act  which 
makes  the  mayor  and  aldermen  of  a  corporation  commissioners  of  the 
court  house  and  jail  may  be  repealed  by  the  legislature,  and  these  build- 
ings placed  under  the  control  of  county  or  other  officers.  State  v.  Mayor, 
R.  M.  Charlt.  (Geo.)  250  ;  see,  also,  State  i>.  Dews,  ib.  397.  A  grant  to  a  city 
to  aid  in  building  court  house  and  for  educational  purposes,  is  subject,  until 
executed,  to  legislative  resumption  and  control.  Bass  v.  Fontleroy,  11 
Texas,  698. 


CH.  IV.]  LEGISLATIVE  CONTROL EXTENT  AND  LIMITATIONS.     79 

it  is  constitutionally  competent,  likewise,  to  the  legislature  of 
a  state  to  direct  that  the  county  shall  pay  a  portion  of  the  ex- 
penses of  a  police  force  in  a  city  situated  wholly  within,  and 
forming  part  of,  the  county.  It  may  even  direct  a  county  to 
appropriate  part  of  its  revenue  already  collected  in  this  way, 
since  such  legislation  is  not  unconstitutional,  as  heing  retro- 
spective in  its  operation,  or  as  taking  away  vested  rights,  or 
impairing  the  obligation  of  contracts,  or  violating  the  princi- 
ples of  taxation.  As  moneys  acquired  by  taxation  are  not 
strictly  the  private  property  of  the  county,  such  legislation  is 
not  the  application  of  private  property  to  public  use  without 
compensation,  since  the  police  board,  by  virtue  of  the  act  cre- 
ating it,  was  an  agency  of  the  state  government  and  performed 
public  duties.1 

§  35.  The  legitimate  authority  of  the  legislature  over  mu- 
nicipal corporations  extends  to  making  provisions  concerning 
their  funds  and  revenues,  and  the  authority  is  not  abridged  be- 
cause the  purpose  to  which  the  revenue  is  to  be  appropriated 
is  specified  in  the  charter,  and  the  ground  of  the  doctrine  is, 
that  such  corporations  have  no  vested  rights  in  powers  con- 
ferred upon  them  for  civil,  political,  or  administrative  pur- 
poses. Thus,  the  legislature  may  repeal  the  power  it  had 
given  to  cities  to  grant  licenses  for  the  sale  of  intoxicating 
liquors,  although  the  money  to  be  derived  from  the  sale  of 
such  licenses  was  directed  to  be  appropriated  to  the  support 

The  management  and  mode  of  electing  trustees  of  an  incorporated  acade- 
my, which  is  endowed  entirely  by  the  state,  may  be  changed  by  the  legisla- 
ture at  its  pleasure.  Dart  v.  Houston,  22  Geo.  506 ;  see,  also,  University  of 
North  Carolina  v.  Maultsby,  8  Ire.  Eq.  257  ;  University  of  Alabama  v.  Wins- 
ton, 5  Stew.  &  Port.  17  ;  Louisville  v.  University  of  Louisville,  15  B.  Mon. 
642 ;  Visitors,  &c.  v.  State,  15  Md.  330. 

1  State  ex  rel.  St.  Louis  Police  Commissioners  v.  St.  Louis  County  Court 
(mandamus),  34  Mo.  546, 1864;  contra,  Mayor,  &c.  v.  Tows,  5  Sneed  (Tenn.) 
186.  The  view  of  the  Supreme  Court  of  Missouri  is  undoubtedly  the  cor- 
rect one. 

School  districts  being  public  corporations,  under  legislative  control,  a  law 
providing  that  school  debts  might  be  paid  in  bills  of  the  state  bank  of  the 
state,  is  valid  as  against  the  objection  that  the  legislature  had  no  power  to 
direct  that  anything  except  gold  and  silver  should  be  received  in  payment 
of  debts.    Bush  v.  Shipman,  4  Scam.  (111.)  190. 


$ 


80  MUNICIPAL   CORPORATIONS.  ,  [CH.  IV. 

of  paupers  within  the  city.1  Such  an  authority,  it  was  re- 
marked, "gives  the  city  no  more  a  vested  right  to  issue 
licenses,  because  the  legislature  specified  the  objects  to  which 
the  money  should  be  applied,  than  if  it  had  been  put  into  the 
general  fund  of  the  city."2 

§  36.  Legislative  acts  respecting  municipal  corporations 
not  being  in  the  nature  of  contracts,  the  provisions  thereof 
may  be  changed  at  pleasure  where  the  constitutional  rights  of 
creditors  and  others  are  not  invaded.  By  act  of  the  legislature 
the  separate  city  of  Lafayette  was  added  to  and  incorporated 
with  the  city  of  New  Orleans,  with  a  provision  that  the  added 
district,  which  was  less  in  debt  than  the  city  of  New  Orleans, 
should  be  charged  only  with  its  own  debts;  and  by  a  subse- 
quent act  of  the  legislature  it  was  provided,  that  taxes  should 
be  equal  and  uniform  throughout  the  entire  limits  of  the  city, 
the  effect  of  which  was  to  increase  the  amount  of  taxes  to  be 
raised  within  that  portion  of  the  corporation  which  was  for- 

1  Gutzweller  v.  People,  14  111.  142, 1852. 

2  Gutzweller  v.  People,  14  111.  142,  1852,  per  Calm,  J.  See,  also,  Richland 
Co.  v.  Lawrence  Co.  12  111.  1,  1850;  People  v.  Power,  25  111.  187.  By  the 
charter  of  a  municipal  corporation  there  was  granted  to  it  sole  power  to 
grant  licenses  to  sell  spirituous  liquors  within  its  limits,  and  to  appropriate 
the  money  arising  therefrom  to  city  purposes.  Subsequently  the  legisla- 
ture passed  an  act  directing  the  money  thus  arising  to  be  paid  by  the 
corporation  to  an  academy  located  within  the  town.  The  municipal  cor- 
poration refused  to  pay  over  to  the  academy  an  amount  received  for 
licenses  after  the  passage  of  the  last  named  act,  and  the  academy  brought 
an  action  to  recover  it.  The  court  held  the  subsequent  act  to  be  unconsti- 
tutional, and  that  the  town  was  not  liable.  The  court  were  of  opinion, 
that,  by  its  charter,  the  town  had  a  vested  right  in  the  profits  arising  from 
licenses.  It  admitted  that  the  legislature  might  altogether  take  away  from 
the  town  the  power  to  grant  licenses ;  but  if  it  allowed  the  power  to  re- 
main, it  denied  the  right  of  the  legislature  "  to  make  a  different  disposition 
of  the  funds  arising  from  such  licenses,  from  that  contained  in  the  charter, 
unless  with  the  consent  of  the  corporation."  Trustees  of  Aberdeen  Acad- 
emy v.  Aberdeen,  13  Sm.  &  Marsh.  (Miss.)  645,  1850.  See,  also,  Aberdeen  v. 
Saunderson,  8  ib.  663.  The  doctrine  that  the  town  corporation  had  a  vested 
right  in  profits  arising  from  licenses,  cannot,  we  think,  be  sustained,  and 
is  not  in  harmony  with  the  decisions  elsewhere. 

County  and  township  funds  are  under  legislative  control.  County  v.  State, 
11  111.  202;  County  v.  County,  12  111.  1 ;  Dennis  v.  Maynard,  15  111.  477;  Love 
*.  Schenck,  12  Ire.  Law,  304 ;  Love  v.  Ramsour,  ib.  328. 


CH.  IV.]   LEGISLATIVE  CONTROL  —  EXTENT  AND  LIMITATIONS.  81 

merly  the  city  of  Lafayette.  A  bill  was  filed  by  residents  and 
property  owners  of  the  annexed  district  to  enjoin  the  collec- 
tion of  the  excess  of  taxes  beyond  the  amount  fixed  by  the 
act  incorporating  the  annexed  district  into  the  "old  city," 
claiming  that  the  act  was  a  contract,  and  the  levy  of  taxes 
under  the  latter  act,  so  far  as  regards  debts  due  antecedently 
to  the  annexation,  violated  the  vested  rights  of  the  inhabitants 
of  the  annexed  district.  The  Supreme  Court,  on  the  ground 
that  public  corporations  are  wholly  under  the  control  of  the 
legislature,  which  has  the  power  to  provide  in  what  manner 
taxes  shall  be  levied  for  their  support,  and  how  their  debts 
shall  be  paid  on  their  dissolution,  held  the  act  authorizing  in- 
creased taxation  to  be  valid,  and  dismissed  the  bill.1 

§  37.  The  power  of  the  legislature- to  alter  and  abolish 
municipal  corporations,  to  erect  new  corporations  in  the 
place  of  the  old,  to  add  to  the  old,  or  to  carve  out  of  the  old 
a  new  corporation,  or  the  power  to  divide  and  dispose  of  the 
property  held  by  such  corporations  for  municipal  purposes,  is 
not  defeated  or  affected  by  the  circumstance  that  the  corpora- 
tion is,  by  its  charter,  made  the  trustee  of  a  charity,  or  of  other 
private  rights  and  interests.  "Where  the  legal  existence  of  the 
municipal  trustee  is  destroyed  by  legislative  act,  the  Court  of 
Chancery  will  assume  the  execution  of  the  trust,  and,  if  nec- 
essary, will  appoint  new  trustees  to  take  charge  of  the  prop- 
erty and  carry  into  effect  the  trust.2 

§  38.  The  supremacy  of  the  legislative  authority  over  mu- 
nicipal corporations  is  not,  however,  in  all  respects,  unlimited; 
but  the  limitations  must  be  sought  either  in  the  national  or 
state  constitution,  and  if  not  there  found,  in  terms,  or  by  fair 
implication,  they  do  not  exist.  In  England,  it  is  settled  that 
the  crown  has  no  power,  without  the  consent  of  those  to  be 

1  Layton  v.  New  Orleans,  12  La.  An.  515, 1857.  See,  also,  Girard  «.  Phila- 
delphia, 7  Wall.  1, 1868;  People  v.  Hill,  7  Cal.  97, 1857;  post,  Chap.  VIII. 

2  Girard  v.  Philadelphia,  7  Wall.  1,  1868;  Montpelier  v.  East  Montpelier 
(division  of  town  and  contest  as  to  trust  property  held  for  the  benefit  of  the 
inhabitants  of  the  original  township),  29  Vermont  (3  Wms.),  12, 1856;  same 
controversy  at  law,  27  Vermont,  704.  See  infra,  Sec.  47,  and  chapters  on 
Corporate  Property  and  Eemedies  against  Illegal  Corporate  Acts,  post. 

11 


82  MUNICIPAL    CORPORATIONS.  [CH.    IV. 

affected  thereby,  to  alter  or  abolish  municipal  charters,  or  to 
impose  pew  ones  on  the  corporation.  But  parliament  may 
create  new  corporations,  or  abolish  or  alter  charters,  or  impose 
new  ones,  at  its  will,  and  without  the  consent  of  the  inhabit- 
ants. And  so  may  the  state  legislatures  in  this  country,  if 
there  be  no  special  constitutional  restriction,  as  generally 
there  is  not,  upon  the  power.1 

§  39.  It  may  assist  to  an  understanding  of  the  extent  of 
legislative  power  over  municipal  corporations  proper  (incor- 
porated towns  and  cities)  to  observe,  that  these,  as  ordinarily 
constituted,  possess,  according  to  many  courts,  a  double  char- 
acter— the  one  governmental,  legislative,  or  public;  the  other,  in 
a  sense,  proprietary  or  private.  The  distinction  between  these, 
though  sometimes  difficult  to  trace,  is  highly  important,  and 
is  frequently  referred  to,  particularly  in  the  cases  relating  to 
the  implied  or  common  law  liability  of  municipal  corporations 
for  the  negligence  of  their  servants,  agents,  or  officers  in  the 
execution  Of  corporate  duties  and  powers.  On  thi«  distinc- 
tion, indeed,  rests  the  doctrine  of  such  implied  liability.2  In 
its  governmental  or  public  character,  the  corporation  is  made, 
by  the  state,  one  of  its  instruments,  or  the  local  depositary  of 

1  St.  Louis  v.  Allen  (extension  of  city  limits),  13  Mp.  400,  1850;  St.  Louis 
v.  Russell,  9  Mo.  503,  1845.  It  is  justly  observed,  that  "Most,  if  not  all,  of 
the  leading  cases  in  the  books,  involving  the  question  of  the  inviolability 
of  municipal  charters,  in  the  English  courts,  arose  between  the  prerogative  of 
the  crown  and  the  corporation.  The  right  or  power  of  parliament  in  England, 
or  of  the  legislature  here,  would  present  (and  was  decided  to  present)  quite 
a  different  question."  Per  Nelson,  J.,  in  People  v.  Morris,  13  Wend.  325, 
334, 1835;  Philadelphia  v.  Field,  58  Pa.  St.  320,  1868. 

2  Ante,  p.  33.  "  The  distinction  is  well  established  between  the  responsi- 
bilities of  towns  and  cities  for  acts  done  in  their  public  capacity,  in  the  dis- 
charge of  duties  imposed  on  them  by  the  legislature  for  the  public  benefit, 
and  for  acts  done  in  what  may  be  called  their  private  character,  in  the  man- 
agement of  property  and  rights  voluntarily  held  by  them  for  their  own 
immediate  profit  or  advantage,  as  a  corporation,  although  inuring,  of 
course,  ultimately  to  the  benefit  of  the  public."  Per  Gray,  J.,  in  Oliver  v. 
Worcester,  102  Mass.  489,  499,  1869;  S.  P.  Detroit  «.  Qorey,  9  Mich.  165,  184, 
1861.    In  the  one  case,  no  private  action  lies  unless  it  be  expressly  given ; 

)  in  the  other,  there  is  an  implied  or  common  law  liability  for  the  negligence 
of  their  officers  in  the  discharge  of  such  duties.  In  further  illustration  of 
this  alleged  dual  character,  the  reader  is  referred  to  the  cases  cited  in  the 
next  note. 


CH.  IV.  J    LEGISLATIVE  CONTROL  —  EXTENT  AND  LIMITATIONS.  83 

certain  limited  and  prescribed  political  powers,  to  be  exercised 
for  the  public  good,  on  bebalf  of  tbe  state,  and  not  for  itself. 
In  this  respect  it  is  assimilated,  in  its  nature  and  functions,  to 
a  county  corporation,  which,  as.  we  have  seen,  is  purely  part 
of  the  governmental  machinery  of  the  sovereignty  which 
creates  it.  Over  all  its  civil,  political,  or  governmental  pow- 
ers, the  authority  of  the  legislature  is,  in  the  nature  of  things, 
supreme  and  without  limitation,  unless  the  limitation  is 
found  in  some  peculiar  provision  of  the  constitution  of  the 
particular  state.  But  in  its  proprietary  or  private  character, 
the  theory  is,  that  the  powers  are  supposed  not  to  be  con- 
ferred, primarily  or  chiefly,  from  considerations  connected 
with  the  government  of  the  state  at  large,  but  for  the  private 
advantage  of  the  particular  corporation  as  a  distinct  legal  per- 
sonality, and  as  to  such  powers,  and  to  property  acquired 
thereunder,  and  contracts  made  with  reference  thereto,  the 
corporation  is  to  be  regarded  as  quoad  hoc  a  private  corpora- 
tion, or,  at  least,  not  puhlic  in  the  sense  that  the  power  of  the 
legislature  over  it  is  omnipotent.1 

1  West.  Sav.  Fund  Soc.  v.  Philadelphia,  31  Pa.  St.  175;  ib.  185;  Bailey  v. 
Mayor,  &c.  of  New  York,  3  Hill,  531;  Small  v.  Danville,  51  Maine,  359; 
Jones  v.  New  Haven,  34  Conn.  1 ;  Western  College  v.,  Cleveland,  12  Ohio  St. 
375,  1861 ;  Howe  v.  New  Orleans,  12  La.  An.  481 ;  Martin  v.  Mayor,  &c.  1 
Hill,  545;  Buttrick  v.  Lowell,  1  Allen,  172;  Oliver  v.  Worcester,  102  Mass. 
489,  1869;  Touchard  v.  Touchard,  5  Cal.  306;  Gas  Co.  ■».  San  Francisco,  9 
Cal.  453;  Commissioners  v.  Duckett,  20  Md.  468;  West  v.  Brookport,  16  N. 
Y.  161,  note;  Louisville  v.  University  of  Louisville,  15  B.  Mon.  642;  Louisville 
v.  Commonwealth,  1  Duvall  (Ky.),  295;  Weightman  v.  Washington,  1  Black 
(U.  S.),  39,  1861;  Reading  e.  Commonwealth,  11  Pa.  St.  196,  1849;  Richmond 
o.  Long's  Admr.  17  Gratt.  (Va.)  375;  De  Voss  v.  Richmond,  18  Gratt.  338; 
S.  C.  7  Am.  Law  Reg.  (N.  S.)  589;  Detroit  v.  Corey,  9  Mich.  165,  184,  1861; 
People  v.  Hurlburt,  Supreme  Court  of  Michigan,  1871,  opinion  of  Cooky,  3. 
This  division  of  the  powers  and  duties  of  a  municipal  corporation  into 
two  classes,  one  public  and  the  other  private,  is,  to  our  mind,  far  from  sat- 
isfactory; and  the  private  character  thus  ascribed  to  it,  difficult  exactly  to 
comprehend.  In  what  sense  are  powers  conferred  and  to  be  exercised  for 
the  good  of  all  the  people  of  the  place,  private?  Wherein  do  such  powers, 
in  their  origin  or  nature,  differ  from  those  admitted  to  be  public?  Are  not 
all  powers  conferred  upon  municipalities,  whether  many  or  few,  given, 
and  given  only,  for  their  better  regulation  and  government,  and  to  pro- 
mote their  welfare  as  parts  of  the  state  at  large?  The  small  municipality, 
with  few  and  simple  powers,  is  no  more  completely  under  the  supreme 
dominion  of  the  legislature  than  the  more  populous  one,  requiring  for 


84  MUNICIPAL   CORPORATIONS.  [CH.    IV. 

§  40.  It  is,  perhaps,  at  present,  impossible  to  state,  with 
confidence,  what  limitations  exist  upon  the  power  of  the  legislature 
over  municipal  corporations,  as  ordinarily  constituted.  It  is 
practicable  only  to  refer  to  the  leading  cases  upon  the  subject, 
and  attempt  to  extract  the  principles  upon  which  they  rest. 

It  is  decided  that  a  grant  by  the  legislature  of  the  state  to  a 
town,  of  the  right  to  establish  a  ferry,  is  not  in  the  nature 
of  a  contract,  hence  the  grant  is  repealable,  and  the  corpora- 
tion may  constitutionally  be  deprived  of  the  franchise.1  So  an 
act  conferring  upon  a  municipal  corporation  a  public  trust,  and 
the  title  to  land  as  ancillary  to  its  execution,  is  not  a  contract, 
but  may  be  repealed  at  the  will  of  the  legislature.2  But  sup- 
its  proper  government  organs  and  powers  peculiar  to  itself.  Are  the  latter, 
therefore,  private  t  If  so,  it  must  be  in  a  qualified  and  peculiar  sense. 
Ante,  p.  33.  Contracts  in  favor  of  the  creditor  are  protected  by  the  na- 
tional constitution;  but  as  against  the  state,  what  private  powers  and  rights 
can  a  municipal  corporation  be  said  to  have,  when  it  is  within  the  power 
of  the  state,  which  breathed  into  it  the  breath  of  life,  utterly  to  extinguish 
its  existence  at  pleasure.  The  distinction  originated  with  the  courts,  to 
promote  justice  and  to  escape  technical  difficulties  in  order  to  hold 
such  corporations  liable  to  private  actions.  On  this  subject,  the  opinion  of 
Chief  Justice  Denio,  in  Darlington  v.  Mayor,  &c.  31  N.  Y.  164, 1865,  may  be 
read  with  profit.  The  Chief  Justice  there  asserts  the  unlimited  power  of 
the  legislature  over  municipal  corporations  and  their  property.  He  main- 
tains that  such  corporations  are  altogether  public,  and  all  their  rights  and 
powers  public  in  their  nature,  and  that  their  property,  though  held  for 
income  or  sale,  and  unconnected  with  any  use  for  the  purposes  of 
the  municipal  government,  is  under  the  control  of  the  legislature,  and 
not  within  the  provisions  of  the  constitution  iprotecting  private  property. 
He  denies  the  correctness  of  the  distinction  taken  in  Bailey  v.  The  Mayor, 
&c.  of  New  York,  3  Hill,  531,  and  other  cases,  between  the  public  and  pri- 
vate functions  of  city  governments,  and  maintains  that  as  respects  the  state, 
all  their  powers  and  functions  are  public.  He  affirms  that  the  legislature 
may  compel  a  municipal  corporation  to  submit  to  arbitration  claims  to 
which  private  corporations  and  natural  persons  would  be  entitled  by  the 
constitution  to  a  trial  by  jury.  See,  as  to  jury,  Dunsmore's  Appeal,  52  Pa. 
St.  374.  Holding  contrary  view,  Plimpton  v.  Somerset,  33  Vt.  283,  1860. 
See,  also,  chapters  on  Municipal  Courts,  Property,  and  Ordinances,  post. 

1  East  Hartford  *>.  Hartford  Bridge  Co.  10  How.  511,  1850  ;  S.  C.  16  Conn. 
149 ;  17  ib.  79  ;  Trustees  e.  Tatman,  13  111.  30 ;  Police  Jury  v.  Shreveport,  5 
La.  An.  661, 1850 ;  Darlington  v.  Mayor,  31  N.  Y.  164,  202,  203,  per  Denio, 
C.J. 

*  People  ».  Vanderbilt,  26  N.  Y.  287,  1863.  Where  an  act  incorporating  a 
city  donated  lands  included  therein,  for  the  erection  of  certain  public  build- 
ings, and  the  residue  to  be  applied  to  education,  and  the  charter  was  after- 


OH.  IV. J  LEGISLATIVE  CONTROL  —  EXTENT  AND  LIMITATIONS.     85 

pose  the  legislature  had  granted  in  fee,  to  the  corporation,  a 
tract  of  land  within  its  limits,  is  such  a  grant,  or  an  ordinary 
grant  of  land  to  the  corporation  from  others,  a  contract  as  res- 
pects the  state,  and  protected  hy  the  constitution  from  legisla- 
tive invasion,  the  same  as  if  the  grant  had  been  made  to,  or 
the  property  acquired  by,  an  individual  or  private  corporation  ? 
The  question  thus  stated  has  never  arisen  directly  for  adjudi- 
cation in  the  Supreme  Court  of  the  United  States ;  but,  in  the 
celebrated  Dartmouth  College  Case,  two  of  the  judges  ex- 
pressed the  opinion  that  the  legislative  control  over  public  and 
municipal  corporations  was/  not  so  transcendent  and  absolute 
as  to  extend  to  an  arbitrary  divestiture  of  its  private  property 
and  the  destruction  of  rights  of  a  private  nature.  On  the 
other  hand,  it  is  the  opinion  of  a  distinguished  and  able  judge 
in 'New  York,  in  a  case  already  mentioned,  that  the  authority 
of  the  legislature  over  the  powers,  rights,  and  property  of  mu- 
nicipal and  public  corporations,  is,  as  respects  the  corporations, 
quite  without  limit.1  The  weight  of  opinion  seems  to  be  in 
favor  of  the  doctrine,  that  there  may  be,  in  such  corporations, 
rights  under  contracts  and  grants  which  are  beyond  destruc- 
tion by  the  legislature,  though  not  beyond  legitimate  legis- 
lative authority  and  control ; 2  but  in  the  present  state  of  the 
decisions  the  subject  cannot  be  fairly  said  to  be  settled. 

4 

wards  repealed,  it  was  held  that  until  the  trust  had  been  executed  it  was 
competent  for  the  legislature  to  change  or  abolish  it,  and  that  the  repeal  of 
the  charter  extinguished  the  trusts,  they  being  public,  unexecuted,  and 
conditional.  Bass  v.  Fontleroy,  11  Texas,  698-708,  1854.  Where  an  act  of 
the  legislature,  instead  of  granting  certain  moneys  received  by  the  state  for 
the  purposes  of  internal  improvements  to  certain  counties  absolutely,  simply 
appropriated  it  to  be  drawn  by  such  counties  and  expended  by  them  in  the 
improvement  of  roads,  &c,  it  was  held  that  before  its  expenditure  by  the 
counties  the  legislature  had  entire  control  over  the  fund,  and  might  resume 
or  change  the  purposes  for  which  it  was  originally  designed  to  be  expended, 
or  provide  for  the  payment  by  an  old  county,  which  had  received,  but  not 
expended,  its  proportion  of  such  fund,  to  a  new  county  erected  out  of  the 
old  county  of  an  equitable  share  of  the  fund.  Richland  County  ».  Law- 
rence County,  12  111.  1,  1850,  distinguished  from  Hampshire  v.  Franklin,  16 
Mass.  76  ;  post,  Chap.  VIII. 

1  Denio,  C.  J.,  in  Darlington  ».  New  York,  31  N.  Y.  164,  1865. 

2  In  Eichland  County  v.  Lawrence  County,  12  111.  1, 1850,  while  the  plen- 
ary power  of  the  legislature  over  the  public,  civil,  or  political  rights  of  pub- 
lic corporations  was  asserted  and  declared,  still  it  was  admitted  by  the  very 
able  and  cautious  judge  who  delivered  the  opinion,  that  "  the  state  may 


86  MUNICIPAL   CORPORATIONS.  [CH.    IV. 

§  41.  It  is  an  interesting  inquiry,  which  has  not  yet  arisen 
for  judgment,  whether  the  legislature  of  the  state  has  the  right, 
in  virtue  of  its  control  over  municipal  corporatipns,  to  annul 
or  interfere  with  contracts  between  two  municipalities.  If^a 
municipal  corporation,  however,  becomes  indebted,  the  rights 
of  the  creditors  cannot,  it  is  clear,  be  impaired  by  any  subsequent 

make  a  contract  with,  or  a  grant  to,  a  public  municipal  corporation  which  it 
could  not  subsequently  resume ;  but  in  such  case  the  corporation  is  to  be 
regarded  as  a  private  company."  Per  Trumbull,  J.  See  West.  Sav.  Fund 
Society  v.  Philadelphia,  31  Pa.  St.  175 ;  ib.  185. 

"  But  while  the  legislative  power  (to  enlarge,  restrain,  or  even  destroy 
municipal  corporations,  as  the  public  interest  may  require)  may  be  exercised 
over  public  and  municipal  corporations,  it  has  as  uniformly  been  held  that 
towns,  and  other  public  corporations,  may  have  private  rights  and  interests 
vested  in  them  under  their  charter ;  and  as  to  those  rights,  they  are  to  be 
regarded  and  protected  the  same  as  if  they  were  the  rights  and  interests  of 
individuals  or  of  private  corporations,  and  grants  of  property  in  trust  for 
other  than  corporate  and  municipal  use  (that  is,  as  we  understead,  for  pri- 
vate, as  distinguished  from  public,  purposes),  are  no  more  the  subject  of  leg- 
islative control  than  are  the  private  and  vested  rights  of  individuals."  Per 
Isham,  J.,  arguendo,  in  Montpelier  v.  East  Montpelier,  29  Vermont  (3  Wms.), 
12,  19,  1856 ;  S.  C.  27  ib.  704. 

Legislative  grants  of  property  to  private,  and,  it  seems;  also,  to  public  and 
municipal,  corporations,  cannot  be  repealed  so  as  to  divest  the  rights  of  the 
grantees.  Town  of  Pawlet  v.  Clark,  9  Cranch  (U.  S.),  292,  336, 1815,  per 
Story,  J.,  obiter ;  Terrett  v.  Taylor,  ib.  43,  52.  In  this  last  case,  Mr.  Justice 
Story  remarks,  arguendo :  "  In  respect,  also,  to  public  corporations,  which 
exist  only  for  public  purposes,  such  as  counties,  towns,  cities,  &c,  the  legis- 
lature may,  under  proper  limitations,  have  a  right  to  change,  modify,  en- 
large, or  restrain  them,  securing,  however,  the  property,  for  the  uses  of  those 
for  whom  and  at  whose  expense  it  was  originally  purchased."  Followed 
by  Chancellor  Kent,  2  Com.  305  ;  by  Mr.  Justice  Washington,  Dartmouth 
College  Case,  4  Wheat.  518,  663.  In  the  last  case,  Mr,  Justice  Story  said : 
"  But  it  will  hardly  be  contended,  that  even  in  respect  to  such  [public]  cor- 
porations, the  legislative  power  is  so  transcendent  that  it  may,  at  its  will, 
take  away  the  private  property  of  the  corporation,  or  change  the  uses  of  its 
private  funds  acquired  under  the  public  faith."  4  Wheat.  518,  694,  obiter. 
And  such  is  Mr.  Justice  Cooky's  view  in  his  valuable  treatise.  Constitution- 
al Limitations,  238.  He  reiterates  in  his  learned  opinion  in  People  v.  Hurlburt, 
Supreme  Court  of  Michigan,  1871.  In  Grogan  v.  San  Francisco,  18  Cal.  590, 
Mr.  Chief  Justice  Field,  delivering  the  opinion  of  the  Supreme  Court  of  Cal- 
ifornia, takes  the  ground  that  the  real  estate  or  private  property  of  a  muni- 
cipal corporation  is  protected  by  the  clause  in  the  national  constitution  se- 
curing the  inviolability  of  contracts ;  that  all  legislative  authority  over  it. 
must  be  exercised  in  subordination  to  this  guaranty,  and  that  it  is  subject 
to  legislative  control  to  the  same  extent,  but  to  no  greater  extent,  than  all 
other  property  in  the  state.    But  in  Darlington  v.  Mayor,  &c.  of  New  York, 


CH.  IV.]    LEGISLATIVE  CONTROL- — EXTENT  AND  LIMITATIONS.  87 

legislative  enactment.1  Thus,  where  an  act  of  the  legislature 
was  passed  to  provide  for  the  payment  of  the  debts  of  a  mu- 
nicipal corporation  and  authorizing  the  creation  of  a  sinking 
fund,  to  be  deposited  and  applied  in  a  particular  manner,  and 
where  creditors  acting  thereunder  have  surrendered  the  evi- 
dences of  their  debts  and  received  new  bonds,  for  the  payment 
of  which  the  fund  stands  pledged  by  the  act,  it  is  not  compe- 
tent —  because  it  impairs  the  obligation  of  contracts  —  for  a 
subsequent  legislature,  in  providing  for  the  liquidation  of  the 
corporate  debts,  to  give  a  different  destination  to  the  sinking 
fund  by  changing  the  depository  of  the  fund.2  So  where  the 
effect  of  an  act  of  the  legislature  authorizing  a  city  to  fund  its 
floating  debt  was,  in  substance,  a  pledge  to  those  who  surren- 
dered their  claims  and  received  new  obligations,  to  trustees  of 
a  portion  of  her  revenues  and  property,  to  be  applied  to  the 
payment  of  her  obligations  in  a  specified  mode,  this,  if  acted 
on,  constitutes  a  contract  which  cannot  be  materially  altered, 
either  by  the  municipality  or  the  legislature,  without  the  sanc- 
tion of  the  creditors;  but  it  was  held  that  a  subsequent  act, 

31  1ST.  Y.  164, 193,  205,  Mr.  Chief  Justice  Denio  observes :  "  Let  us  suppose 
the  city  to  be  the  owner  of  a  parcel  of  land  not  adapted  to  any  municipal 
use,  but  valuable  only  for  sale  to  private  persons  for  building  purposes,  or 
the  like  ;  no  one,  I  think,  can  doubt  but  what  it  would  be  competent  for 
the  legislature  to  direct  it  to  be  sold,  and  the  proceeds  devoted  to  some  mu- 
nicipal or  other  public  purpose,  within  the  city,  as  a  court  house,  a  hospital, 
or  the  like.  *  *  It  is  unnecessary  to  say  whether  the  legislative  ju- 
risdiction would  extend  to  diverting  the  city  property  to  other  public  use  * 
than  such  as  concerns  the  city  and  its  inhabitants;"  And  he  considers  the 
expression  of  Chancellor  Kent  (2  Com.  305)  and  of  Mr.  Justice  Story,  that 
where  a  municipal  corporation  is  empowered  to  have  and  to  hold  private 
property,  such  property  is  invested  with  the  security  of  other  private 
rights,  to  mean  only  that  it  possesses  such  rights  against  wrong-doers,  and 
not  that  it  is  exempt  from  legislative  control.    31  N.  Y.  164, 196. 

1  Van  Hoffman  v.  Quincy,  4  Wall.  535 ;  Butz  v.  Muscatine,  8  ib.  575 ;  Lee 
County  v.  Rogers,  7  ib.  175 ;  Furman  v.  Nichol,  8  ib.  44;  Woodruff  v.  Trapnall, 
10  How.  206;  Bronson  v.  Kinsie,  1  ib.  316;  Lansing  v.  County  Treasurer,  1 
Dillon  Cir.  C.  R.  522;  Muscatine  v.  Railroad  Company,  ib.  536;  Soutter  v. 
Madison  (act  forbidding  city  to  levy  taxes  to  pay  judgments  held  void),  15 
Wis.  30;  Western  Savings  Fund  Society  v.  Philadelphia,  31  Pa.  St.  175 
185.    Further,  see  Chapter  on  Contracts,  post. 

*  Liquidators  v.  Municipality,  6  La.  An.  21,  1851.  As  to  sinking  fund,  see 
Terry  v.  Bank,  18  Wis.  87 ;  post,  Chapter  on  Charters.  Fraudulent  transfers 
of  property  by  municipal  cbrporations,  Smith  v.  Morse,  2  Cal.  524. 


88  MUNICIPAL  CORPORATIONS.  [CH.   IV. 

simply  changing  the  mode  of  levying  taxes,  and  which  did  not 
and  could  not  affect  the  result  or  impair  the  security  of  the  cred- 
itors, was  not  invalid.1  So,  also,  where  the  legislature  author- 
ized an  indebted  city  to  issue  bonds  to  a  specified  amount,  in 
payment  of  a  like  amount  of  its  outstanding  bonds,  and,  among 
other  provisions,  plainly  intended  to  induce  creditors  to  make 
the  exchange,  was  one  prohibiting  the  city  from  thereafter 
issuing  its  bonds,  "  except  in  payment  of  its  bonded  debt," 
and  this  authority  having  been  acted  on,  and  the  arrangement 
accepted  by  the  creditors,  and  new  bonds  issued,  it  was  de- 
cided by  the  supreme  court  of  "Wisconsin  that  the  prohibition 
against  the  issue  of  further  bonds,  constituted,  in  favor  of  the 
holders  of  the  new  bonds,  a  contract,  which  the  legislature 
could  not  impair  by  a  subsequent  enactment,  authorizing  the 
municipality  to  issue  additional  bonds  for  other  purposes.2 

§  42.  But  authority  to  a  city  to  borrow  money,  and  to  tax 
all  the  property  therein  to  pay  the  debt  thus  incurred,  does 
not  necessarily  deprive  the  state  of  the  power  to  modify  taxa- 
tion so  as  to  exempt  portions  of  the  property,  if  the  rights  of 
creditors  be  not  thereby  impaired.3  So  authority  given  in  a 
railroad  charter  to  a  county  to  take  stock  and  issue  bonds 
therefor,  if  a  majority  of  the  voters  so  determine,  is  not  a  con- 
tract, but  a  mere  authority  conferred  upon  the  county  in  its 
public  capacity,  and  may  be  repealed  at  any  time  before  the 
subscription  has  been  made.4 

§  43.  The  legislature,  as  the  trustee  for  the  general  public, 
has  full  control  over  the  public  property  and  the  subordinate 
rights  of  municipal  corporations.     Accordingly,  it  may  author- 

1  People  v.  Bond,  10  Cal.  563, 1858.  And  see  People  v.  Wood,  7  Cal.  579, 
1857. 

s  Smith  v.  Appleton,  19  Wis.  468, 1865.  Extent  of  legislative  power  over 
municipal  indebtedness  as  against  the  municipality,  see  City  v.  Lamson,  9 
Wall.  477,  and  read,  in  connection  therewith,  Campbell  v.  Kenosha,  5  Wall. 
194,  in  effect  overruling  the  practical  application  of  Foster  v.  Kenosha,  12 
Wis.  616, 1860;  post,  chapters  on  Charters  and  Contracts. 

8  Gilman  v.  Sheboygan,  2  Black,  510,  1862;  Muscatine  v.  Eailroad  Com- 
pany, 1  Dillon  C.  C.  536. 

*  Aspinwall  v.  County  of  Jo  Daviess,  22  How.  364, 1859.  If  not  indeed  at 
any  time  before  it  is  paid  for:  People  v.  Coon,  25  Cal.  635. 


CH.  IVi]   LEGISLATIVE  CONTROL  —  EXTENT  AND  LIMITATIONS.  89 

ize  a  railroad  company  to  occupy  the  streets  in  a  city  without 
its  consent  and  without  payment,  but  it  could  not,  probably, 
authorize  the  taking  of  the  private  property  of  a  city  by  a  rail- 
road company,  except  for  public  purposes,  and  upon  compensa- 
tion being  made.1  It  may  authorize  corporations  to  make  con- 
tracts, but  it  is  more  doubtful  whether  it  can  make  contracts 
for  them,  since  the  essence  of  a  contract  consists  in  the  agree- 
ment of  the  parties.  And  on  this  view  it  has  been  held,  in 
Vermont,  that  the  legislature  cannot,  without  the  consent  of  a 
municipal  corporation,  appoint  an  agent  for  it,  and  authorize 
him,  as  such  agent,  to  purchase  property  and  bind  the  corpora- 
tion to  pay  for  it.2  So  the  supreme  court  of  Illinois  has,  very 
recently,  decided  that  the  legislature,  under  peculiar  provisions 
in  the  constitution  of  that  state,  has  no  power  to  compel  a  city 
to  incur  a  debt  against  its  will.3     Questions  of  this  kind  de- 

1  Darlington  v.  Mayor,  &c.  31  N.  Y.  164,  1865  ;  Reynolds  v.  Stark  County, 
5  Ohio,  204 ;  5  Ohio  St.  113 ;  Clinton  v.  Railroad  Company,  24  Iowa,  455, 
1868 ;  Louisville  v.  University  of  Louisville,  15  B.  Mon.  642,1 1855.  See,  fur- 
ther, chapters  on  Streets  and  on  Dedication,  post ;  People  v.  Kerr,  27  N.  Y. 
188  ;  Mercer  v.  Railroad  Company,  36  Pa.  St.  99 ;  Mayor,  &c.  v.  Hopkins,  13 
La.  An.  326 ;  Reading  v.  Commonwealth,  11  Pa.  St.  196. 

2  Atkins  v.  Randolph,  31  Vt.  226,  1858.  The  case  was  this  :  Plaintiff  sued 
the  town  of  Randolph  in  assumpsit  for  liquor  sold  to  an  "agent"  appointed 
by  the  county  commissioners  to  purchase  liquors  (under  the  act  of  1852, 
"to  prevent  the  traffic  in  intoxicating  liquors"),  at  the  expense  of  the  town 
for  which  he  was  appointed.  The  town  never  gave  any  assent,  express  or 
implied,  to  this  appointment ;  nor  did  it  receive  any  benefit  from  the  sale 
of  the  liquors,  or  have  any  knowledge  that  the  agent  was  purchasing  liquors 
on  its  credit.  The  court  held  the  act  of  1852  unconstitutional,  and  that  the 
plaintiffs  could  not  recover.  The  decision  was  put  mainly  upon  the  ground 
that  the  legislature  could  not  authorize  a  binding  contract  to  be  made  cre- 
ating a  debt  against  a  public  corporation  without  its  consent.  Bennett,  J., 
dissented,  not  on  the  ground  that  the  corporation  was  bound  by  force  of 
any  contract,  but  because  the  act  of  1852  imposed  a  duty  upon  the  towns,  as 
municipal  corporations,  to  pay  for  the  liquors,  and  this  for  public  purposes, 
and  to  carry  out  a  police  regulation.  Chief  Justice  Denio  criticises  this  case, 
and  considers  it  as  "standing  upon  no  principle "  —  Darlington  v.  Mayor, 
&c.  of  New  York,  31  N.  Y.  164,  205, 1865.  And  see  Philadelphia  ».  Field,  58 
Pa.  St.  320, 1868. 

3  People  v.  Chicago  (Lincoln  Park  Case),  51  111.  17,  1869;  People  v.  Salo- 
mon (South  Park  Case),  ib.  37 ;  Howard  v.  Drainage  Company,  ib.  130. 
Though  the  reasoning  of  the  court  is  general,  yet  the  point  decided,  that 
the  city  could  not  be  compelled  to  contract  a  debt  against  its  consent,  was 
influenced  by,  if  it  does  not  rest  upon,  a  constitutional  provision  (Art.  IX. 

12 


90  MUNICIPAL   CORPORATIONS.  [CH.  IV. 

pend,  for  correct  solution,  not  only  upon  the  constitutional 
provisions  in  the  particular  state,  but  also,  perhaps,  upon  the 
nature  of  the  debt  which  the  municipality  is  ordered  to  create. 
If  there  is  no  special  limitation  in  the  constitution,  and  the 
debt  is  one  to  be  incurred  in  the  discharge  of  a  public  duty, 
which  it  is  proper  for  the  legislature  to  impose  upon  the  mu- 
nicipality, it  can  constitute  no  objection  to  the  validity  of  the 
act,  that  the  debt  or  liability  is  to  be  created  without  its  con- 
sent. Thus,  in  the  absence  of  constitutional  restriction,  it  has 
been  decided,  and  the  decision  is  doubtless  correct,  that  it  is 
competent  for  the  legislature  to  direct  a  municipal  corporation 
to  build  a  bridge  over  a  navigable  water  course  within  its  lim- 
its, or  the  state  may  appoint  agents  of  its  own  to  build  it,  and 
empower  them  to  create  a  loan  to  pay  for  the  structure,  paya- 
ble by  the  corporation.1 

§  44.  The  fact  that  a  claim  against  a  municipal  or  public 
corporation  is  not  such  an  one  as  the  law  recognizes  as  of 
legal  obligation,  has  been  decided  to  form  no  constitutional  ob- 
jection to  the  validity  of  a  law  imposing  a  tax  and  directing 
its  payment;2  but  the  validity  of  legislation  of  this  character, 

Sec.  5),  which  was  construed  to  restrict  the  legislature  from  granting  the 
right  of  local  or  corporate  taxation  to  any  other  than  the  corporate  authori- 
ties of  the  municipality  or  district  to  be  taxed.  Compare  Darlington  v. 
Mayor,  &c.  of  New  York,  31  N.  Y.  164. 

The  general  propositions  in  the  text  as  to  the  restrictions  on  legislative 
power  over  municipal  corporations  will  be  found  to  be  sustained  by  the 
following  cases:  Atkins  v.  Randolph,  31  Vt.  226,  1858;  White  v.  Fuller,  39 
Vt.  193 ;  Louisville  v.  The  University,  15  B.  Mon.  642 ;  Western  Savings 
Fund  Society  v.  Philadelphia,  31  Pa.  St.  175, 185 ;  Montpelier  v.  East  Mont- 
pelier,  29  Vt.  12 ;  Poultney  v.  Wells,  1  Aik.  (Vt.)  180  ;  Trustees  «.  Winston, 
5  Stew.  &  Port.  (Ala.)  17 ;  Norris  v.  Trustees  Abington  Academy,  7  Gill  & 
Johns.  (Md.)  7;  Regents  of  University  v.  Williams,  9  ib.  365;  Trustees  of 
Academy  v.  Aberdeen,  13  Sm.  &  Mar.  (Miss.)  645 ;  Brunswick  v.  Litchfield, 
2  Maine  (2  Greenl.),  28, 32. 

1  Philadelphia  o.  Field,  58  Pa.  St.  320,  1868,  approving  Thomas  v.  Leland, 
24  Wend.  65;  supra,  Sec.  30,  note,  and  cases  cited.  But  the  legislature 
would  not,  of  course,  possess  such  extensive  powers  over  a  private  corpora- 
tion.   Erie  «.  Canal,  59  Pa.  St.  174. 

4  Guilford  v.  Supervisors,  &c.  13  N.  Y.  (3  Kern.)  143,  1855.  See  Mr. 
Sedgwick's  opinion  of  this  legislation,  Const,  and  St.  Law,  313,  314.  The 
same  principle  was  applied  in  Brewster  v.  Syracuse,  19  N.  Y.  116,  1859, 
where  it  was  decided  by  all  of  the  judges  of  the  .Court  of  Appeals  that  the 


OH.  IV.]   LEGISLATIVE  CONTROL  —  EXTENT  AND  LIMITATIONS.  91 

if  it  interferes  with  what  has  been  called  the  private  contracts  of 
such  corporations,  can  only  be  sustained  on  the  ground  that 
such  contracts,  so  far  as  the  corporations  are  concerned,  are 
under  the  absolute  control  of  the  legislature,  and  not  within 
the  protection  of  the  national  constitution — a  principle  which 
cannot  yet  be  said  to  be  incorporated  into  our  jurisprudence. 
The  cases  go  no  further,  probably,  than  to  assert  the  doctrine 
that  it  is  competent  for  the  legislature  to  compel  municipal 
corporations  to  recognize  and  pay  debts  not  binding  in  law, 
and  which,  for  technical  reasons,  could  not  be  enforced  in 
equity,  but  which,  nevertheless,  are  just  and  equitable  in  their 
character,  and  involve  a  moral  obligation.1  To  this  extent 
and  with  this  limitation,  the  doctrine  seems  unobjectionable 
in  principle,  although  it  asserts  a  measure  of  control  over 
municipalities,  in  respect  of  their  duties,  which  does  not  exist 
as  to  private  corporations  or  individuals. 

legislature  has  the  power  to  authorize  the  levy  of  a  tax  for  the  purpose  of 
paying  to  one  who  has  constructed  a  municipal  improvement  (a  street 
sewer)  an  addition  to  the  contract  price,  which  the  corporation  was  forbidden 
to  pay  by  its  charter.  The  court  did  not  consider  that  there  was  any  con- 
tract in  the  case,  and  sustained  the  legislation  on  the  ground  that  it  was 
warranted  by  the  taxing  power,  which,  in  that  state,  was  not  restrained, 
thus  leaving  it  in  the  discretion  of  the  legislature  to  recognize  and  direct 
the  payment  of  claims  founded  in  equity  and  justice,  or  in  gratitude  or 
charity.  People  v.  Mayor,  &c.  of  Brooklyn,  4  Comst.  419.  And  see  Thomas 
v.  Leland,  24  Wend.  65,  1840;  Shelby  Co.  v.  Railroad  Co.  5  Bush  (Ky.),  225; 
Philadelphia  v.  Field,  58  Pa.  St.  320,  1868.  This  seems  to  be  carrying  the 
doctrine  of  the  control  of  the  legislature  over  public  corporations  to  its  ex- 
treme limit.  See  Mr.  Justice  Cooley's  views,  Const.  Lim.  380,  491,  notes. 
The  Supreme  Court  of  California  has  followed  and  approved  Guilford  v. 
Supervisors.  Blanding  v.  Burr,  13  Cal.  343,  1859.  Under  special  provisions 
of  Michigan  constitution,  see  People  v.  Onandaga,  16  Mich.  254.  Where 
one  county  is  under  a  moral  obligation  to  reimburse  another  county  for 
certain  expenses,  the  legislature  may  give  this  a  legal  effect  by  a  subse- 
quent act.  Lycoming  v.  Union,  15  Pa.  St.  166, 1850.  Eight  of  trial  by  jury 
may  be  denied  by  the  legislature  to  municipal  corporations,  these  being 
mere  creatures  of  its  policy,  with  such  rights  only  as  it  sees  proper  to  con- 
fer. Borough  of  Dunsmore's  Appeal,  52  Pa.  St.  374 ;  but  see,  supra,  Sec.  39, 
note  on  p.  40. 

1  Blanding  v.  Burr,  13  Cal.  343,  1859;  Lycoming  v.  Union,  15  Pa.  St.  166; 
Guilford  v.  Supervisors,  13  N.  Y.  143, 1855;  Brewster  v.  Syracuse,  19  N.  Y. 
116,  1859;  Thomas  v.  Leland,  24  Wend.  65,  1840;  Hasbrouck  v,  Milwaukee, 
21  Wis.  217, 1866;  Smith  v.  Morse,  2  Cal.  524;  Grogan  v.  San  Francisco,  18 
Cal.  590;  Burns  v.  Clarion  County,  62  Pa.  St.  422. 


92  MUNICIPAL   CORPORATIONS.  [Clt.  TV.' 

§  45.  Accordingly,  it  has  been  decided  recently,  in  Mary- 
land, that,  as  against  the  abutters,  the  legislature  could  not 
ratify  an  assessment  for  a  local  improvement  in  front  of  their 
property,  and  which  had  been  adjudged  to  be  void,  and  com- 
pel them  to  pay  for  the  same.1  In  the  case  just  mentioned, 
the  legislature,  in  an  act  relating  to  the  grading  and  paving 
of  an  avenue  in  the  city  of  Baltimore,  among  other  things,  re- 
quired, as  preliminary  to  proceedings  thereunder,  that  the 
mayor  and  council  of  the  city  should  determine  the  proposed 
work  to  be  consistent  with  the  public  good.  An  application; 
by  property  owners,  for  the  improvement,  was  made  to  the 
city  commissioner  instead  of  the  mayor  and  council,  and  the 
commissioner  determined  to  grade  the  avenue,  awarded  the 
contract,  and  the  contractor  did  the  work  at  the  cost  of  over 
$100,000.  The  abutters  instituted  no  proceeding  to  stop  the 
work,  and  after  it  was  completed  the  city  passed  an  ordinance 
ratifying  the  contract  to  grade,  and  all  the  acts  of  the  officers 
of  the  city  in  relation  to  the  grading  of  the  avenue.  An 
assessment  being  made  upon  their  property,  to  pay  the  ex- 
pense of  the  grading,  they  filed  a  bill  for  an  injunction  and 
relief,  and  it  was  judicially  determined  that  the  proceedings 
of  the  city  commissioner  were  coram  non  judice  and  void,  and 
that  they  could  not  be  ratified  by  ordinance.2  After  this 
judicial  determination,  the  legislature  passed  an  act  directing 
the  city  to  pay  the  contractors  for  the  work  done  by  them 
and  accepted  by  the  city,  to  borrow  the  money  for  the  pur- 
pose, and  levy  a  tax  for  its  repayment,  which  the  city  did. 
But  at  the  same  session,  the  legislature,  to  reimburse  the  city 
treasury,  empowered  the  city  to  collect  from  the  abutters  on 
the  avenue  graded  the  amounts  which  had  been  assessed  and 
ascertained  by  the  city  commissioner,  and  this  last  act  was 
held  by  the  Court  of  Appeals  to  be  void,  because  it  was  an 
assumption  of  judicial  power  by  the  legislature,  and,  in  effect, 
a  legislative  reversal  of  the  former  judgment  of  the  court. 

§  46.  In  general,  however,  the  legislature  may,  by  subse- 
quent act,  validate  and  confirm  previous  acts  of  the  corpora- 

1  Baltimore  v.  Horn,  26  Md.  194, 1866. 
1  Baltimore  v.  Porter,  18  Md.  284, 1861. 


Cn.  IV. J  LEGISLATIVE  CONTROL  —  EXTENT  AND  LIMITATIONS.     93 

tion  otherwise  invalid.1  Merely  because  such  legislation,  in 
matters  not  relating  to  crimes,  is  retrospective,  does  make  it 
void.  If',  in  addition  to  its  being  retrospective,  it  unjustly 
abrogates  vested  rights,  and,  without  reasonable  cause,  imposes 
upon  third  persons  new  duties  in  respect  to  past  transactions,  it 
may  be  void  because  in  conflict  witb  the  constitution.2 

§  47.  "While  it  is  undeniable  that  the  legislature  has  full 
control  over  public  corporations,  and  over  the  funds  which 
belong  to  them  as  such,  and  held  for  strictly  corporate  pur- 
poses; yet  where,  by  authority  of  law,  such  corporations  hold 
property  or  funds  in  trust  for  specific  uses,  it  is  left  in  doubt  by 
the  cases  how  far  the  legislature  can,  unless  the  uses  be 
strictly  public,  interfere  with  or  control  such  trust  property  or 
funds.  Certain  it  is,  that  without  legislative  authority,  a  mu- 
nicipal corporation  holding  the  legal  title  to  property  in  trust, 
cannot  use  the  funds  derived  from  such  property  for  corporate 
purposes,  or,  indeed,  for  any  except  the  trust  purposes.3 

1  Bridgeport  v.  Railroad  Co.  15  Conn.  475,  1843,  in  which  it  was  held,  that 
the  legislature  might  validate  prior  subscription  of  city  to  stock  of  railroad 
company;  S.  P.  Winn  v.  Macon,  21  Geo.  275,  1857;  McMillen  v.  Boyles,  6 
Iowa,  304;  ib.  391;  New  Orleans  v.  Poutz,  14  La.  An.  853;  Bissell  v.  Jeffer- 
sonville,  24  How.  287,  295,  1860;  Achison  v.  Butcher,  3  Kansas,  104,  1865; 
Frederick  v.  Augusta,  5  Geo.  561 ;  Truchelut  v.  City  Council,  1  Nott  &  Mc- 
Cord,  (South  Car.)  227;  Cooley  Const.  Lim.  371,  379. 

2  Bridgeport  v.  R.  R.  Co.  15  Conn.  475,  497,  and  cases  cited  per  Church,  J. 
Laws  passed  to  remedy  defective  execution  of  powers  by  public  corpora- 
tions, or  their  officers,  are  valid,  though  retrospective  in  their  operation, 
unless  they  contravene  some'  provision  of  the  state  constitution.  State  v. 
Newark,  3  Dutch.  (N.  J.)  187,  1858;  Bissell  v.  JefFersonville,  24  How.  287, 
295,  where  such  curative  acts  are  said  to  be  valid  when  contracts  are  not 
impaired,  or  the  rights  of  third  persons  injuriously  affected. 

It  is  competent  for  the  legislature  to  validate  a  city  ordinance  which  had 
become  null  and  void  for  want  of  being  recorded,  and  to  provide  that  the 
omission  to  record  shall  not  impair  the  lien  of  the  assessments  against  the 
lot  owners.  Schenley  v.  Commonwealth,  36  Pa.  St.  29,  1859.  The  legisla- 
ture may  ratify,  and  thereby  make  binding,  an  unauthorized  municipal 
subscription  to  the  stock  of  an  incorporated  theatre  company.  Municipal- 
ity v.  Theatre  Co.  2  Rob.  (La.)  209,  1842;  but,  quere,  whether,  if  the  legisla- 
ture had  the  power,  the  act  in  this  case  was  properly  held  to  be  a 
ratification.    See,  further,  chapter  on  Contracts,  post. 

3  White  v.  Fuller,  39  Vt.  193 ;  ante,  Sec.  37 ;  Montpelier  v.  East  Montpelier 
(contest  as  to  trust  property  on  division  of  town),  27  Vt.  (1  Wms.)  704, 1854; 
same  controversy  in  chancery,  29  Vt.  (3  Wms.)  12.    See,  also,  Trustees,  &o. 


94  MUNICIPAL   CORPORATIONS.  [CH.  IV. 

D.Bradbury,  2  Fairf.  (Me.)  118;  Poultney  v.  "Wells,  1  Aik.  (Vt.)  180;  Ply- 
mouth v.  Jackson,  15  Pa.  44;  Harrison  v.  Bridgeton,  16  Mass.  16;  Daniel  v. 
Memphis,  11  Humph.  (Tenn.)  582;  Trustees  of  Academy  v.  Aberdeen,  13 
Sm.  &  Mar.  (Miss.)  645,  as  to  which,  quere.  Aberdeen  v.  Sanderson,  8  ib. 
670;  Chambers  v.  St.  Louis,  29  Mo.  543;  Holland  v.  San  Francisco,  7  Cal. 
361 ;  Girard  v.  Philadelphia,  7  Wall.  1.  See,  post,  chapters  on  Corporate 
Property  and  Remedies  Against  Illegal  Corporate  Acts.  A  conveyance  was 
made  in  1743,  by  the  proprietors  of  the  lands,  to  the  selectmen  of  North 
Yarmouth,  of  "  all  the  flats,  sedge  banks,  and  muscle  beds  in  said  town, 
lying  below  high  water  mark,"  "  for  the  sole  use  and  benefit  of  the  present 
inhabitants,  and  of  all  such  as  may  or  shall  forever  inhabit  and  dwell  in 
said  town,"  &c.  It  was  decided  that  this  property  was  held  by  the  town  as 
a  public  corporation,  subject  to  legislative  control,  in  trust  for  the  use  of  all 
of  the  inhabitants,  and  that  upon  a  division  of  the  town,  it  was  competent 
for  the  legislature  to  provide  that  the  original  town  should  still  hold  such 
property  in  trust  for  the  inhabitants  of  both  towns.  North  Yarmouth  v. 
Skillings,  45  Maine,  133,  1858. 

To  another  town  in  Maine,  lands  were  granted  by  Massachusetts  prior  to 
the  separation  of  Maine  therefrom,  for  the  use  of  Us  schools.  The  legislature, 
in  1803,  on  the  application  of  the  town,  authorized  the  sale  of  the  lands, 
and  gave  to  certain  designated  trustees  the  right  to  control  the  funds  raised 
by  the  sale  of  the  lands.  This  was  considered  as  constituting  a  contract,  and 
it  was  accordingly  held  that  a  subsequent  act  of  the  legislature,  authorizing 
the  town  to  choose  a  new  set  of  trustees,  and  directing  the  first  trustees  to 
deliver  over  the  trust  property,  was,  agreeably  to  the  principles  settled  in 
the  Dartmouth  College  Case,  unconstitutional  and  void.  The  Trustees,  &c. 
v.  Bradbury,  11  Maine,  118,  1834 ;  Yarmouth  v.  North  Yarmouth,  34  Maine, 
411,  1852.  In  this  last  case  the  trustees  of  the  funds  were  a  private  corpora- 
tion, and  not  subject  to  legislative  control.  In  North  Yarmouth  v.  Skillings, 
45  Maine,  133, 1858,  the  trustees  of  the  funds  or  property  in  question  were  a 
public  corporation,  and  subject  to  such  control.  The  rule  as  to  private  and 
public  corporations  is  well  exemplified  in  these  two  cases.  See,  also,  Norris 
v.  Abington  Academy,  7  Gill  &  Johns.  (Md.)  7 ;  Bass  v.  Fontleroy,  11  Texas, 
698 ;  Louisville  v.  University  of  Louisville,  15  B.  Mon.  642. 

In  the  State  v.  Springfield  Township,  6  Ind.  (Porter)  83,  1854,  it  was  held, 
that  a  law  of  the  state  (act  of  1852),  so  far  as  it  diverted  the  proceeds  of  the 
sale  of  the  sixteenth  section  (granted  by  act  of  congress  of  April  19, 1816) 
from  the  use  of  schools  in  the  congressional  township  where  the  land  was 
situated,  to  the  use  of  the  school  system  of  the  state  at  large,  was  in  con- 
travention of  that  section  of  the  state  constitution  (Sec.  7,  Art.  VIII.) 
which  provides,  that  "  All  trust  funds,  held  by  the  state,  shall  remain  in- 
violate, and  be  faithfully  and  exclusively  applied  to  the  purpose  for  which 
the  trust  was  created." 


CH.  V.]  MUNICIPAL  CHARTERS.  95 


CHAPTER  V. 

Municipal  Charters. 
General  Municipal  Poivers. —  Their  Nature  and  Construction. 

§  48.  This  chapter  will  treat  of  Municipal  Charters,  and  the 
principles  upon  which  they  are  construed,  and  of  the  general 
nature  of  the  powers  which  they  confer  upon  the  corporation 
or  upon  its  legislative  or  governing  body.  The  subject  will  be 
considered  under  the  following  heads  :  1.  Charters  Denned. 
2.  Judicially  Noticed.  3.  Proof  of  Corporate  Existence.  4.  Re- 
peal and  Amendment  of  Charters.  5.  Conflict  between  Gen- 
eral Laws  and  Special  Charters.  6.  Extent  of  Corporate  Pow- 
ers, Limitations  Thereon,  and  Canons  of  Construction.  7. 
Usage  as  affecting  Powers  and  Their  Interpretation.  8.  Dis- 
cretionary Powers.  9.  Public  Powers  Incapable  of  Delega- 
tion. 10.  Or  Surrender.  11.  Mandatory  and  Discretionary 
Powers.  12.  Exemption  of  Revenues  from  Judicial  Seizure, 
and  herein  of  Garnishment. 

Charters  Defined. 

§  49.  We  have  before  seen  that,  in  this  country,  municipal 
corporations  are  created  by  legislative  act,  either  in  the  form 
of  a  special  charter  or  by  general  incorporating  statutes.1  A 
municipal  charter,  granted  by  the  crown  in  England,  is  a 
written  instrument,  made  in  the  form  of  letters  patent,  with 
the  great  seal  appended  to  it,  addressed  to  all  the  subjects,  and 
constituting  the  persons  therein  named,  and  their  successors, 
a  body  corporate  for  or  within  the  place  therein  specified,  and 
prescribing  the  powers  and  duties  of  the  corporation  thereby 
created.  But  such  charters  are  inoperative  until  accepted.2 
Here,  as  we  have  elsewhere  shown,  the  legislature  creates,  al- 

>  Ante,  p.  56,  Sec.  19 ;  p.  57,  Sec.  20. 
2  Ante,  p.  45,  Sec.  15 ;  p.  63,  Sec.  23. 


96  MUNICIPAL  CORPORATIONS.  [CH.  V. 

ters,  and,  in  the  absence  of  constitutional  restriction,  can  des- 
troy, municipal  and  public  corporations  at  its  will,  and  it  invests 
them  with  such  powers,  and  requires  of  them  such  duties,  as 
it  deems  most  expedient  for  the  general  good,  and  for  the  ben- 
efit of  the  particular  locality.1  No  precise  form  of  words  is 
necessary  to  create  a  corporation,  and  a  corporation  may  be 
created  by  implication.2 

Charters  Judicially  Noticed. 

§  50.  Courts  will  judicially  notice  the  charter  or  incorpo- 
rating act  of  a  municipal  corporation  without  being  specially 
pleaded,  not  only  when  it  is  declared  to  be  a  public  statute,  but 
when  it  is  public  or  general  in  its  nature  or  purposes,  though  there 
be  no  express  provision  to  that  effect.  But  the  acts,  votes,  and 
ordinances  of  the  corporation  are  not  public  matters,  and 
must  be  pleaded.3 

Proof  of  Corporate   Existence. —  User. —  Legislative  Recognition. 

§  51.  The  primary  evidence  of  a  special  charter  or  act  of 
incorporation,  in  this  country,  is  the  original,  or  an  authenti- 
cated copy,  or  a  printed  copy,  published  by  authority,  But 
if  primary  evidence  cannot  be  had,  parol  or  secondary  evidence 
of  its  existence  is  admissible.4  So  where  a  public  corporation 
had  existed  for  a  long  space  of  time  (in  the  instance  before  the 
court  for  forty  years),  the  court  admitted  proof  of  its  incorpo- 

1  Ante,  p.  17,  See.  8  ;  p.  28,  Sec.  9  ;  p.  30,  Sec.  10. 
*  Ante,  p.  60,  Sec.  21 ;  p.  62,  Sec.  22. 

3  Beatty  v.  Knowles,  4  Pet.  (U.  S.)  152,  157,  1830 ;  Aldermen  v.  Finley,  5 
Eng.  (Ark.)  423,  1850 ;  Eauntleroy  v.  Hannibal,  1  Dillon,  C.  C.  118,  1871 ; 
West  v.  Blake,  4  Blackf.  (Ind.)  234, 1836  ;  Briggs?;.  Whipple,  7  Vt.  15, 18, 1835  ; 
Case  v.  Mobile.  30  Ala.  538,  1857  ;  Ciarke  v.  Bank,  5  Eng.  (Ark.)  516 ;  State 
v.  Mayor,  11  Humph.  (Tenn.)  217,  1850  ;  see  Vance  v.  Bank,  Blackf.  (Ind.)  80, 
and  note  (2) ;  6  Bac.  Abr.  374,  note ;  Young  v.  Bank,  &c.  4  Craneh,^S84  ;  Swails 
v.  State,  4  Ind.  516, 1853 ;  Portsmouth,  &c.  Co.  ».  Watson,  10  Mass.  91 ;  Clapp 
v.  Hartford,  35  Conn.  66  ;  People  v.  Potter,  35  Cal.  110  ;  see,  post,  chapter  on 
Ordinances.  Where  a  public  law  creates  the  mayor  and  aldermen  an  in- 
corporated body,  no  averment  or  proof  is  necessary  to  establish  the  exist- 
ence of  the  corporation.    State  v.  Mayor,  11  Humph.  (Tenn.)  217,  1850. 

4  Stockbridge  v.  West  Stockbridge,  12  Mass.  400,  1815;  Braintree  v.  Bat- 
tles, 6  Vt.  395,  1834 ;  Blackstone  v.  White,  41  Pa.  St.  330. 


OH.  V.]  MUNICIPAL   CHARTERS.  97 

ration  by  reputation,  the  original  act  not  being  found,  and  it , 
being  probable  that  it  had  been  destroyed  by  fire.1  So  evi- 
dence that  a  town  has  for  many  years  exercised  corporate  priv- 
ileges, no  charter,  after  search,  being  found,  is  competent  to 
go  to  the  jury  to  establish  that  it  was  duly  incorporated.  And 
where  there  is  no  direct  or  record  evidence  that  a  place  has 
been  incorporated,  and  it  is  sought  to  show  the  fact  of  incor- 
poration from  circumstantial  evidence,  the  question  is  for  the 
jury,  and  not  the  court;  that  is,  the  jury,  under  the  circum- 
stances, determine  whether  there  is  or  is  not  sufficient  ground 
to  presume  a  charter  or  act  of  incorporation,2  or  the  due  estab- 
lishment and  existence  of  a  corporate  district  under  some  gen- 
eral act.3     So  corporate  existence  may  be  inferred  and  judi- 

1  Dillingham  v.  Snow,  5  Mass.  547,  1809.  S.  P.  Bassett  v.  Porter,  4  Cush. 
487,  1849.  In  view  of  the  defective  manner  in  which  the  records  of  quasi 
corporations  —  such  as  school  and  road  districts,  and  the  like  —  are  kept, 
the  courts,  in  the  absence  of  any  statute  requiring  record  evidence,  will 
permit  the  existence  and  organization  of  the  corporation  to  be  proved  by 
reputation  and  acta,  where  these  facts  do  not  appear  of  record.  Barnes  ». 
Barnea,  6  Vt.  388,  1834 ;  Londonderry  v.  Andover,  28  ib.  416,  1856  ;  Sherwin 
v.  Bugbee,  16  ib.  439 ;  Ryder  v.  Railroad  Company,  13  111.  523 ;  Highland 
Turnpike  v.  McKean,  10  Johns.  154 ;  Owings  v.  Speed,  5  Wheat.  420.  See 
chapter  on  Corporate  Records  and  Documents,  post. 

Irregularities  in  the  proceedings  to  organize  a  corporation  are  not  favored 
when  set  up,  long  afterwards,  to  defeat  the  corporate  existence.  Jameson 
v.  People,  16  111.  257,  1855;  Dunning  ».  Railroad  Company,  2  Ind.  437,  1850  ; 
Fitch  o.  Pinckard,  4  Scam.  (111.)  76. 

Where  a  corporation  is  created,  and  declared  to  exist  as  such,  by  the  leg- 
islature, without  condition,  proof  of  organization  or  user  is  not  necessary  to 
enable  them  to  maintain  an  action  :  Cahill  v.  Insurance  Company,  2  Doug. 
(Mich.)  124 ;  Fire  Department  v.  Kip,  10  Wend.  266,  1833.  And  see  Proprie- 
tors, &c.  v.  Horton,  6  Hill  (N.  Y.)  501 ;  People  v.  President,  9  Wend.  351 ; 
Wood  v.  Bank,  9  Cowen,  194,  205.  When  construed  to  be  immediately  ere  ■ 
ated,  the  omission  to  do  certain  acts  prescribed  to  organize  the  institution, 
was  held  immaterial  as  respects  persons  contracting  with  the  corporation. 
Brouwer  o.  Appleby,  1  Sandf.  158,  1847;  S.  P.  People  v.  President,  9  Wend 
351.    See,  also,  ante,  p.  63,  Sec.  23. 

2  New  Boston  v.  Dumbarton,  15  N.  H.  201,  1844 ;  Mayor  of  Kingston  v. 
Horner,  Cowp.  102,  per  Lord  Mansfield. 

'  Bassett  v.  Porter,  4  Cush.  487,  1849 ;  New  Boston  v.  Dumbarton,  12  N.  H. 
409,  412,  1841.  S.  C.  15  N.  H.  201 ;  Robie  v.  Sedgwick,  35  Barb.  319,  1861. 
The  exercise  of  corporate  powers  by  a  place  for  twenty  years,  without  ob- 
jection, and  with  the  knowledge  and  assent  of  the  legislature,  furnishes 
conclusive  evidence  of  a  charter,  which  has  been  lost;  or,  in  other  words, 
13 


98  MUNICIPAL   CORPORATIONS.  [CH.  V. 

cially  noticed,  although  the  incorporating  act  or  charter  can- 
not he  found,  if  the  fact  of  incorporation  is  clearly  recognized 
by  subsequent  legislation,  not  in  contravention  of  any  consti- 
tutional provision  respecting  the  mode  of  creating  corpora- 
tions.1 

Repeals  and  Amendments,  and  their  Effect, 

§  52.  The  powers  conferred  upon  municipal  corporations 
may  at  any  time  be  altered  or  repealed  by  the  legislature,  either 
by  a  general  law  operating  upon  the  whole  state,  or,  in  the  ab- 
sence of  constitutional  restriction,  by  a  special  act}  A  charter 
may  be  amended,  and  the  name  of  the  place  and  the  governing 
body  may  be  changed,  and  its  boundaries  altered,  while  in  law 
the  corporation  remains  the  same.  The  insertion  in  an 
amended  charter  of  the  same  provisions  that  were  contained 

of  a  corporation  by  prescription,  which  supposes  a  grant.  Bow  v.  Allen- 
town,  34  N.  H.  351,  1857.  In  this  case  it  was  also  held  that  an  act  of  incor- 
poration subsequently  passed  does  not  raise  any  conclusive  presumption  that 
the  town  was  not  before  incorporated.  Long  use  and  acquiescence  are  evi- 
dence in  support  of  the  legal  existence  of  a  municipal  corporation.  People 
v.  Farnham,  35  111.  562 ;  Jameson  v.  People,  16  111.  257,  1855 ;  People  v. 
Maynard,  15  Mich.  463, 1867.  Long  acquiescence  in  the  proceedings  of  a 
school  district  is  presumptive  evidence  of  the  regular  organization  of  such 
district.  Sherwin  v.  Bugbee,  16  Vt.  439,  1844 ;  Londonderry  v.  Andover,  28 
ib.  416.  "  It  is  now  well  settled  in  this  state,  that  the  mere  fact  of  a  school 
district  maintaining  its  existence  and  operation  for  a  great  number  of  years 
—  say  fifteen  —  is  sufficient  evidence  of  its  regular  organization.  The  same 
rule  of  presumption  must  be  applied  to  the  sub-division  of  the  town  into 
districts."    Per  Redfield,  J.,  in  Sherwin  v.  Bugbee,  supra. 

1  Jameson  v.  People,  16  111.  257,  1855 ;  Swain  v.  Comstock,  18  Wis.  463; 
1864 ;  People  v.  Farnham,  35  ill.  562 ;  Bow  v.  Allentown,  34  N.  H.  351,  1857 ; 
Society,  &c.  v.  Pawlet,  4  Pet.  480,  1830 ;  Railroad  Company  v.  Chenoa,  43  111. 
209 ;  Virginia  City  v.  Mining  Company,  2  Nev.  86,  1866 ;  Railroad  Company 
v.  Plumas  County,  37  Cal.  354.    Ante,  p.  60,  Sec.  21. 

2  Per  Smith,  J.,  Sloan  v.  State,  8  Blackf.  (Ind.)  361,  1847,  approving ;  Peo- 
ple v.  Morris,  13  Wend.  325  ;  Daniel  v.  Mayor,  &c.  11  Humph.  (Tenn.)  582 ; 
State  v.  Mayor,  24  Ala.  701,  1854 ;  Girard  v.  Philadelphia,  7  Wall.  1,  1868. 
Ante,  p.  65,  Sec.  24 ;  p.  70,  Sec.  29,  et  seq.  The  provisions  of  an  amendatory 
act,  reducing  the  number  of  councilmen,  though  the  act  took  effect  at  once, 
were  postponed  until  the  next  year,  when  they  could  be  called  into  requisi- 
tion at  the  election  —  no  earlier  election  being  provided  for  —  and  mean- 
while the  existing  council  remained  unaffected  by  the  amendment.  Sco- 
vill  v.  Cleveland,  1  Ohio  St.  126, 1858, 


CH.  V.J  MUNICIPAL  CHARTERS.  99 

in  the  old  is  not,  unless  such  upon  the  whole  act  appears  to 
have  been  the  intention  of  the  legislature,  a  repeal  of  the  latter. 
The  law  on  this  subject  is  thus  stated;  ""Where  a  statute  does 
not,  in  express  terms,  annul  a  right  or  power  given  to  a  cor- 
poration by  a  former  act,  but  only  confers  the  same  rights  and 
powers  under  a  new  name,  and  with  additional  powers,  such 
subsequent  act  does  not  annul  the  rights  and  powers  given 
under  the  former  act  and  under  its  former  name,"  there  being 
no  express  repeal.1 

§  53.  A  repeating  clause  in  a  revised  and  amendatory  char- 
ter, when  a  former  provision  is  included  in  the  revised  act, 
does  not,  as  to  such  provision,  interrupt  the  continuity  of  the 
original  act.2  Where  the  original  charter  of  a  city  prescribed 
the  qualifications  required  to  make  a  person  eligible  to  the 
office  of  mayor,  and  contained  a  proviso  that  a  certain  fact  dis- 
qualified, and  an  amendatory  act,  in  dealing  with  the  same 
subject,  copied  all  of  the  original  act  except  the  proviso,  which 
was  omitted,  the  court  held  that  the  proviso  in  the  original  act 
was  not  repealed,  placing  stress,  however,  upon  the  express 
declaration  that  all  parts  of  the  new  act  inconsistent 'with,  or 

1  State,  &c.  v.  Mobile,  24  Ala.  701,  1854 ;  Girard  v.  Philadelphia,  7  Wall.  1, 
1868;  Commonwealth  v.  Worcester,  3  Pick.  (Mass.)  474,  1826;  Grant  on 
Corp.  24,  and  cases  cited ;  ib.  305.  See  chapter  on  Dissolution,  post.  "  There 
is  no  doctrine  better  settled,"  says  Mr.  Justice  Strong,  "than  that  a  change 
in  the  form  of  government  of  a  community  does  not  ipso  facto  abrogate  pre- 
existing law,  either  written  or  unwritten.  This  is  true  in  regard  to  what  is 
strictly  municipal  law,  even  when  the  change  is  by  conquest.  The  act  of 
assembly  converting  the  borough  into  a  city  did  not,  therefore,  of  itself,  and 
in  the  absence  of  express  provisions  to  that  effect,  either  repeal  the  former 
acts  of  assembly  relative  to  the  borough,  or  annul  existing  ordinances.  It 
was  solely  a  change  in  the  organic  law  for  the  future,  and  left  unaffected 
the  existing  ordinances,  precisely  as  a  change  of  a  state  constitution  leaves 
undisturbed  all  prior  acts  of  assembly."  Trustees  of  Academy  v.  Erie,  31 
Pa.  St.  515,  517,  1858.  As  to  transfer  to  new  or  reorganized  corporation  of 
the  property  and  rights  of  the  old  or  former  corporation,  see  Girard  v.  Phil- 
adelphia, 7  Wall.  1, 1868 ;  Savannah  v.  Steamboat  Company,  E.  M.  Charlt. 
(Geo.)  342 ;  Fowler  v.  Alexandria,  3  Pet.  398,  408 ;  Municipality  v.  Commis- 
sioners, 1  Rob.  (La.)  279.  Transition  from  town  to  city  organization  does 
not  dissolve  the  corporation  or  extinguish  its  indebtedness.  Olney  v.  Har- 
vey, 50  111.  453, 1869 ;  Maysville  v.  Shultz,  3  Dana,  10,  1865 ;  Frank  v,  San 
Francisco,  21  Cal.  668 ;  post,  Chapter  VII. 

2  St.  Louis  v.  Alexander,  23  Mo.  483, 1856. 


100  MUNICIPAL   CORPORATIONS.  [CH.    V. 

contrary  to,  the  old  one,  were  repealed.  There  is,  however, 
much  room  to  contend  that  the  subject  matter  having  been  re- 
vised in  the  amendatory  act  in  the  manner  it  was,  the  legislative 
intention  was  to  repeal,  and  not  to  continue  in  force,  the  pro- 
viso.1 A  general  law,  forbidding  the  opening  of  streets  through 
cemeteries,  is  not  repealed  by  a  subsequent  act  extending  the 
limits  of  a  town  and  appointing  commissioners  with  authority 
"to  survey,  lay  out,  &c,  streets  and  alleys,  as  they  shall  deem 
necessary,  within  said  limits,"  since  both  acts  can  stand,  and 
repeals  by  implication  are  not  favored.2  So  a  general  statute 
expressly  prohibiting  a  municipal  corporation  from  debarring 
citizens  from  selling  at  wholesale  in  the  city  market  is  not  re- 
pealed, by  implication,  by  a  subsequent  act,  by  which  the  city 
authorities  are  invested  with  power  to  pass  such  ordinances  as 
appear  to  them  necessary  for  the  security,  welfare,  &c.  of  the 
city.3  So,  also,  where  a  state  law  required  auctioneers  to  take 
out  a  state  license,  and  a  subsequent  charter  to  a  city  gave  it 
power  "to  provide  for  licensing,  taxing,  and  regulating  auc- 
tions," &c,  it  was  held  that  a  license  granted  by  the  city  cor- 
poration to  an  auctioneer  did  not  relieve  him  of  the  necessity 
of  obtaining,  also,  a  license  from  the  st'ate  authorities,  the 
court  being  of  opinion  that  both  statutes  should  and  ought  to 
stand,  as  they  were  not  inconsistent.4 

General  Laws  and  Special  Charters.— Conflict. — Construction. 

§  54.  It  is  a  principle  of  very  extensive  Operation,  that  stat- 
utes of  a  general  nature  do  not  repeal,  by  implication,  charters 
and  special  acts  passed  for  the  benefit  of  particular  municipali- 
ties ; 5  but  they  may  do  so  when  this  appears  to  have  been  the 

1  State  v.  Merry,  3  Mo.  278,  1833,  Consult  Goodenow  v.  Buttrick,  7  Mass. 
140,  143 ;  King  v.  Grant,  1  Barn.  <Sc  Adol.  104. 

*  Egypt  Street,  2  Grant  (Pa.),  Cas.  455, 1854.  See,  further,  infra,  Sec.  54, 
as  to  repeals  by  implication. 

8  Haywood  v.  Savannah,  12  Geo.  404,  1853. 

*  Simpson  *.  Savage,  1  Mo.  359,  1823. 

5  Bond  v.  Hiestand,  20  La.  An.'  139 ;  Railroad  Company  v.  Alexandria,  17 
Gratt.  (Va.)  176, 1867 ;  Hammond  v.  Haines,  25  Md.  541 ;  Louisville  v.  Mc- 
Kean,  18  B.  Mon.  9.  Repeals  by  implication  are  not  favored;  and  special 
laws  conferring  particular  rights  upon  municipal  corporations  were  held  not 


CH,  V.]  MUNICIPAL   CHARTERS.  101 

purpose  of  the  legislature.  If  both  the  general  and  special  acts 
can  stand,  they  will  be  construed  accordingly.  If  one  must 
give  way  it  will  depend  upon  the  supposed  intention  of  the 
law-maker,  to  be  collected  from  the  entire  course  of  legisla- 
tion, whether  the  charter  is  superseded  by  the  general  statute, 
or  whether  the  special  charter  provisions  apply  to  the  munici- 
pality, in  exclusion  of  the  general  enactments.  So  particular 
provisions  of  charters  should  be  read  and  construed  in  the  light 
of  the  whole  instrument,  of  all  preceding  charters,  of  the  gen- 
eral legislation  of  the  state,  and  of  the  object  of  the  legislature 
in  the  erection  of  municipalities,  as  before  explained.1 

Extent  of  Power —  Limitation — Canons  of  Construction. 

§  55.  It  is  a  general  and  undisputed  proposition  of  law  that 
a  municipal  corporation  possesses,  and  can  exercise,  the  follow- 
ing powers,  and  no  others :  First,  those  granted  in  express 
words  ;  second,  those  necessarily  or  fairly  implied  in,  or  incident 

to  be  repealed  by  subsequent  statutes,  general  In  their  character.  Ottawa 
v.  County,  12  111.  339;  Egypt  Street,  2  Grant  (Pa.),  Cas.  455, 1854 ;  supra,  See. 
53.  A  general  statute,  repealing  all  acts  contrary  to  its  provisions,  held  not 
to  repeal  a  clause  in  the  charter  of  a  municipal  corporation  upon  the  same 
subject.    State  v.  Branin  (taxation),  3  Zabr.  (N.  J.)  484,  1852. 

The  principle  that  general  legislation  on  a  particular  subject  must,  in  the 
absence  of  anything  showing  a  different  intent  on  the  part  of  the  legisla- 
ture, give  way  to  inconsistent  special  legislation  on  the  same  subject,  is  recog- 
nized and  applied  in  the  following  cases :  State  v.  Morristown,  33  N.  J.  Law, 
57,  1868 ;  State  v.  Branin,  3  Zabr.  484 ;  State  v.  Clark,  1  Dutch.  54 ;  State  v. 
Jersey  City,  5  ib.  170 ;  in  re  Goddard,  16  Pick.  504 ;  Eailroad  Company  v. 
Alexandria,  supra.  In  Bank  v.  Bridges,  1  Vroom  (N.  J.)  112,  and  State  v. 
Miller,  ib.  368,  special  laws  gave  way  to  general  laws,  because  the  legislature 
had  annexed  to  the  latter  a  repealing  clause,  abrogating  all  inconsistent 
local  or  special  acts.  Per  Depue,  J.,  33  N.  J.  57,  60.  See  Bank  v.  Davis,  1 
McCarter  Ch.  (N.  J.)  286 ;  Clintonville  v.  Keeting,  4  Denio,  341 ;  Tierney  v. 
Dodge,  10  Minn.  166.  Other  illustrations  will  be  found  in  the  chapters  on 
Ordinances  and  Taxation,  post. 

1  Alexandria  v.  Alexandria  (taxing  power),  5  Cranch,  2, 1809 ;  Grant  on 
Corp.  27 ;  Canal  Company  v .  Eailroad  Company,  4  Gill  &  Johns.  1 ;  Smith  v. 
Kernochen,  7  How.  198 ;  Janesville  v.  Markoe,  18  Wis.  350 ;  ante,  pp.  17,  28, 
30-41.  Acts  in  pari  materia  should  be  construed  together ;  and  on  this  prin- 
ciple, the  definition  of  the  word  "  owner,"  in  a  subsequent  paving  act,  was 
considered  as  proper  to  be  adverted  to,  and  as  applicable  to  the  same  word 
in  prim  acts  on  the  same  subject.    Holland  v.  Baltimore,  11  Md.  186,  1857. 


102  MUNICIPAL    CORPORATIONS.  [CH.    V. 

to,  the  powers  expressly  granted  r,  third,  those  essential  to  the 
declared  objects  and  purposes  of  the  corporation  —  not  simply 
convenient,  but  indispensable.  Any  fair,  reasonable  doubt 
concerning  the  existence  of  power  is  resolved  by  the  courts 
against  the  corporation,  and  the  power  is  denied.  Of  every 
municipal  corporation  the  charter  or  statute  by  which  it  is 
created  is  its  organic  act.  Neither  the  corporation,  nor  its 
officers,  can  do  any  act,  or  make  any  contract,  or  incur  any 
liability,  not  authorized  thereby.  All  acts  beyond  the  scope 
of  the  powers  granted  are  void.  Much  less  can  any  power  be 
exercised,  or  any  act  done,  which  is  forbidden  by  statute. 
These  principles  are  of  transcendent  importance,  and  lie  at  the 
foundation  of  the  law  of  municipal  corporations.  Their  reasona- 
bleness, their  necessity,  and  their  salutary  character  have  been 
often  vindicated,  but  never  more  forcibly  than  by  the  late 
learned  Chief  Justice  Shaw,  who,  speaking  of  municipal  and 
public  corporations,  says  :  "  They  can  exercise  no  powers  but 
those  which  are  conferred  upon  them  by  the  act  by  which  they 
are  constituted,  or  such  as  are  necessary  to  the  exercise.of  their 
corporate  powers,  the  performance  of  their  corporate'  duties, 
and  the  accomplishment  of  the  purposes  of  their  association. 
This  principle  is  derived  from  the  nature  of  corporations,  the 
mode  in  which  they  are  organized,  and  in  which  their  affairs 
must  be  conducted.  In  aggregate  corporations,  as  a  general 
rule,  the  act  and  will  of  a  majority  is  deemed  in  law  the  act 
and  will  of  the  whole  —  as  the  act  of  the  corporate  body.  The 
consequence  is,  that  a  minority  must  be  bound  not  only  with- 
out, but  against,  their  consent.  Such  an  obligation  may  extend 
to  every  onerous  duty,  to  pay  money  to  an  unlimited  amount, 
to  perform  services,  to  surrender  lands,  and  the  like.  It  is  ob- 
vious, therefore,  that  if  this  liability  were  to  extend  to  unlim- 
ited and  indefinite  objects,  the  citizen,  by  being  a  member  of 
a  corporation,  might  be  deprived  of  his  most  valuable  personal 
rights  and  liberties.  The  security  against  this  danger  is  in  a 
steady  adherence  to  the  principle  stated ;  viz  :  that  corpora- 
tions can  only  exercise  their  powers  over  their  respective  mem- 
bers, for  the  accomplishment  of  limited  and  defined  objects. 
And  if  this  principle  is  important,  as  a  general  rule  of  social 
right  and  municipal  law,  it  is  of  the  highest  importance  in 


CH.  V.]  MUNICIPAL   CHARTERS.  103 

these  states,  where  corporations  have  been  extended  and  multi- 
plied so  as  to  embrace  almost  every  object  of  human  concern." l 

1  Per  Shaw,  C.  J.,  in  Spaulding  v.  Lowell,  23  Pick.  71,  74, 1839;  Bangs  v. 
Snow,  1  Mass.  181 ;  Stetson  ».  Kempton,  13  Mass.  272 ;  Willard  v.  Newbury- 
port,  12  Pick.  227 ;  Keyes  v.  Westford,  17  Pick.  273,  279 ;  Comw.  v.  Turner, 
1  Cusjh.  493,  495,  1848;  Cooley  v.  Granville,  10  Cush.  57,  1852;  Merriam  v. 
Moody,  25  Iowa,  163,  1868 ;  Mintum  v.  Larue,  23  How.  435 ;  Lafayette  v. 
Cox,  5  Ind.  (Port.)  38,  1854 ;  Paine  ».  Spratley,  5  Kansas,  525 ;  Vincent  v. 
Nantucket,  12  Cush.  103,  105;  Clark  v.  Davenport,  14  Iowa,  494;  Mays  v. 
Cincinnati,  1  Ohio  St.  268 ;  Gallia  Co.  v.  Holcomb,  7  Ohio,  part  1. 232 ;  Commrs. 
e.  Mighels,  7  Ohio  St.  109 ;  Fitch  v.  Pinckard  (taxing  power),  4  Scam.  (111.)  78  ; 
Caldwell  v.  Alton  (market  ordinance),  33  111.  416 ;  Trustees,  &c.  v.  McConnel, 
12  111.  140 ;  Louisiana  State  Bank  v.  Orleans  Nav.  Co.  3  La.  An.  294 ;  State  v. 
Mayor,  &c.  (market  house  case)  5  Port.  (Ala.)  279 ;  Head  ».  Ins.  Co.  2  Cranch, 
168 ;  De  Russey  v.  Davis  (sale  of  ferry  lease),  13  La.  An.  468 ;  People  v.  Bank, 
&c.  1  Doug.  (Mich.)  282 ;  City  Council  v.  Plank  Road  Co.  31  Ala.  76 ;  State  v. 
Mayor,  5  Port.  (Ala.)  279 ;  Ex  parte  Burnett,  30  Ala.  461,  and  cases  cited ; 
Le  Couteleux  v.  Buffalo,  33  N.  Y.  333 ;  People  v.  Railroad  Co.  12  Mich.  387. 

"The  powers  of  all  corporations  are  limited  by  the  grants  in  their  char- 
ters, and  cannot  extend  beyond  them."  Per  Breese,  J.,  Petersburg  v.  Metz- 
ger,  21  111.  205.  "Corporations  have  only  such  rights  and  powers  as  are 
expressly  granted  to  them,  or  as  are  necessary  to  carry  into  effect  the  rights 
and  powers  so  granted."  Per  Storrs,  J.,  in  New  London,  v.  Brainard  (illegal 
appropriation  of  money  to  celebrate  4th  of  July),  22  Conn.  552, 1853,  ap- 
proving, Stetson  if.  Kempton,  13  Mass.  272 ;  Hodge  v,  Buffalo,  2  Denio,  110, 
ante,  p>  39,  Sec.  13.  "In  this  country,  all  corporations,  whether  public  or 
private,  derive  their  powers  from  legislative  grant,  and  can  do  no  act  for 
which  authority  is  not  expressly  given,  or  may  not  be  reasonably  inferred. 
But  if  we  were  to  say  that  they  can  do  nothing  for  which  a  warrant  could 
not  be  found  in  the  language  of  their  charters,  we  should  deny  them,  in 
some  cases,  the  power  of  self-preservation,  as  well  as  many  of  the  means 
necessary  to  effect  the  essential  objects  of  their  incorporation,  And  there- 
fore, it  has  long  been  an  established  principle  in  the  law  of  corporations, 
that  they  may  exercise  all  the  powers  within  the  fair  intent  and  purpose  of 
their  creation  which  are  reasonably  proper  to  give  effect  to  powers  expressly 
granted.  In  doing  this,  they  must  [unless  restricted  in  this  respect,]  have 
a  choice  of  means  adapted  to  ends,  and  are  not  to  be  confined  to  any  one 
mode  of  operation.''  Per  Church,  J.,  in  Bridgeport  v.  Railroad  Co.  15  Conn. 
475,  501,  1843.  The  incidental  powers  of  a  municipal  corporation  must  be 
germane  to  the  purposes  for  which  the  corporation  was  created.  Mayor  v. 
Yuille,  3  Ala.  137  (license  to  bakers) ;  Harris  v.  Intendant,  28  ib.  577  (retail- 
ing liquors) ;  Intendant  v.  Chandler,  6  ib.  899  (retailing  liquors). 

Courts  adopt  a  strict,  rather  than  liberal,  construction  of  powers :  "  It  is  a  well 
settled  rule  of  construction  of  grants  by  the  legislature  to  corporations, 
whether  public  or  private,  that  only  such  powers  and  rights  can  be  exercised 
under  them  as  are  clearly  comprehended  within  the  words  of  the  act,  or 
derived  therefrom  by  necessary  implication,  regard  being  had  to  the  objects 
of  the  grant.    Any  ambiguity  or  doubt  arising  out  of  the  terms  used  by  the 


104  MUNICIPAL   CORPORATIONS.  [CH.  V. 

These  general  principles  of  law  are  indisputably  settled,  but 
difficulty  is  often  experienced  in  their  application,  on  account 

legislature  must  be  resolved  in  favor  of  the  public.  This  principle  has  been  so 
often  applied  in  the  construction  of  corporate  powers,  that  we  need  not 
stop  to  refer  to  authorities."  Per  Nelson,  J.,  in  Minturn  v.  Larue,  23  How. 
(U.  S.)  435,  436,  1859,  construing  municipal  charter  as  to  ferry  rights  of  cor- 
poration thereunder.  In  subsequent  cases,  the  Supreme  Court  has  said 
that  a  municipal  corporation  "  can  exercise  no  power  which  is  not,  in  express 
terms,  or  by  fair  implication,  conferred  upon  it."  Thompson  v.  Lee  Co.  3 
Wall.  320;  Thomas  v.  Richmond,  United  States  Supreme  Court,  December 
Term,  1871,  not  yet  reported.  S.  P.  Clark  v.  Davenport,  14  Iowa,  495 ;  Mer- 
riam  v.  Moody's  Executors,  25  Iowa,  163 ;  Mchol  v.  Mayor,  &c.  9  Humph. 
252 ;  Leonard  v.  Canton,  35  Miss.  189,  where  Msher,  J.,  gives  a  clear  exposi- 
tion of  the  rationale  of  the  doctrine  that  corporate  grants  should  be  strictly 
construed.  Douglas  v.  Placerville,  18  Cal.  643, 647 ;  Argenti  v.  San  Francisco, 
16  Cal.  282 ;  Wallace  v.  San  Jose,  29  Cal.  180.  With  us,  cities,  towns,  and 
municipal  corporations  of  all  kinds,  are  created  and  endowed  with  powers 
by  the  legislature.  These  are  of  a  legislative  and  administrative  character, 
to  aid  in  the  better  government  of  localities  or  portions  of  the  state.  This 
power  exists  no  further  than  it  has  been  delegated.  And  municipal  corpo- 
rations, in  their  action,  are  confined  "to  a  strict  construction  of  the  grants  of 
powers  contained  in  their  charters "  or  acts  of  incorporation.  Lafayette  v. 
Cox,  5  Ind.  (Porter)  38, 1854.  "It  is  proper,  too,  that  these  powers  should 
be  strictly  construed,  considering  with  how  little  care  chartered  privileges 
are  these  days  granted."  Bank  v.  Chilicothe,  7  Ohio,  part  II.  31,  35,  1836, 
per  Hitchcock,  J.;  Collins  v.  Hatch,  18  Ohio,  523.  "Boroughs  and  towns  are, 
confessedly,  inferior  corporations.  They  act  not  by  any  inherent  right  of 
legislation,  like  the  legislature  of  the  state,  but  their  authority  is  delegated, 
and  their  powers,  therefore,  must  be  strictly  pursued.  Within  the  limits  of 
their  charter,  their  acts  are  valid ;  without  it,  they  are  void.  Willard  v.  Kil- 
lingworth,  8  Conn.  247,  per  Daggett,  J.;  approved  10  ib.  442.  "The  action  of 
municipal  corporations  is  to  be  held  strictly  within  the  limits  prescribed  by 
statute.  Within  these  limits,  they  are  to  be  favored  by  the  courts.  Powers 
expressly  granted,  or  necessarily  implied,  are  not  to  be  defeated  or  impaired 
by  a  stringent  construction."  Smith  v.  Madison,  7  Ind.  86 ;  Kyle  v.  Malin, 
8  ib.  34,  37,  per  Stuart,  J. 

In  concluding  this  note,  the  author  thinks  it  pertinent  to  remark,  that  the 
principle  of  strict  construction  should  not  be  pressed  in  any  case  to  such  an 
unreasonable  extent  as  to  defeat  the  legislative  purpose  fairly  appearing 
upon  the  entire  charter  or  enactment.  Perhaps  the  rule  as  it  is  briefly  ex- 
pressed in  the  text,  best  embodies  the  result  of  the  adjudications  upon  this 
point,  namely :  If,  upon  the  whole,  there  be  fair,  reasonable,  and  substan- 
tial doubt  whether  the  legislature  intended  to  confer  the  authority  in  ques- 
tion, particularly,  if  it  relates  to  a  matter  extra-municipal  or  unusual  in  its 
nature,  and  the  exercise  of  which  will  be  attended  with  taxes,  tolls,  assess- 
ments, or  burdens  upon  the  inhabitants,  or  oppress  them,  or  abridge 
natural  or  common  rights,  the  doubt  should  be  resolved  in  favor  of  the  citi- 
zen, and  against  the  municipality.    Infra,  Sec.  73. 


CH.  V.]  MUNICIPAL   CHARTERS.  105 

of  the  complex  character  of  municipal  duties,  and  the  various, 
miscellaneous,  and  frequently  indefinite,  purposes  or  objects 
which  municipalities  are  authorized  to  execute  or  carry  into 
operation.1 

Usage  as  Affecting  Municipal  Powers. 

§  56.  In  England  municipal  corporations  claim  and  exer- 
cise many  powers  wholly  in  virtue  of  long-established  usage, 
or  of  prescription,  which  implies  a  lost  charter  conferring  such 
powers.2  Indeed,  from  immemorial  usage,  powers  are  recog- 
nized as  valid,  which  could  not  lawfully  originate  in  a  royal 
charter.  A  usage  to  give  a  right  must,  however,  be  long  es- 
tablished, and  forty  years'  duration  was  not  considered,  of  it- 
self, to  be  sufficient  for  this  purpose.3  But  usage  in  this  coun- 
try has  a  much  more  limited  operation.  It  seems  to  be  a  nec- 
essary result  of  the  manner  in  which  our  municipal  corpora- 
tions are  created,  viz.-,  by  express  legislative  act,  wherein  their 
powers  and  duties  are  wholly  prescribed,  that  the  powers 
themselves  cannot  be  added  to,  enlarged,  or  diminished,  by 
proof  of  usage. 

§  57.  In  a  case  in  Massachusetts,  the  learned  chief  justice 
Bigelow,  after  stating  the  decision  of  the  Supreme  Court,  that 
towns  in  Massachusetts  had  no  authority  to  appropriate  money 
for  the  celebration  of  the  Fourth  of  July,  remarks,  in  relation 
to  the  attempt  to  sustain  the  appropriation  on  the  ground  of 
usage  :  "  Usage  cannot  alter  the  case.  An  unlawful  expend- 
iture of  money  by  a  town  cannot  be  rendered  valid  by  usage, 
however  long  continued.  Abuses  of  power  and  violations  of 
right  derive  no  sanction  from  time  or  custom.  A  casual  or 
occasional  exercise  of  a  power  by  one  or  a  few  towns 
will  not  constitute  a  usage.  It  must  not  only  be  general, 
and   of  long   continuance,  but,  what  is  more   important,  it 

1  Spalding  «.  Lowell,  23  Pick.  71 ;  ante,  pp.  22, 28-30 ;  post,  Chap.  VI.  where 
some  of  these  miscellaneous  or  special  powers  are  considered. 

1  Ante,  Chap.  II.  p.  39  ;  Chap.  III.  p.  44. 

3  Chad  v.  Tilsed,  5  J.  B.  Moore,  185.    As  to  the  proper  office  of  usage  in 
England,  both  as  a  source  of  power  and  to  aid  in  the  interpretation  of  char- 
ter, see  Grant  on  Corp.  19,  27,  28,  29,  552,  564. 
14 


106  MUNICIPAL   CORPORATIONS.  [CH.    V. 

must  also  be  a  custom  necessary  to  the  exercise  of  some 
corporate  power,  or  the  enjoyment  of  some  corporate  right,  or 
which  contributes  essentially  to  the  necessities  and  convenience 
of  the  inhabitants.  The  usage  relied  on  in  the  present  case 
would  not  satisfy  either  of  these  last  named  requisites,  which 
are  necessary  to  give  it  validity."  l  But  general  and  long- 
continued  usage  is  not  without  its  importance,  and  usage  of  this 
character  may  be  resorted  to  in  aid  of  a  proper  construction  of 
the  charter  or  statute,  but  no  further.  If  the  language  be  un- 
certain or  doubtful,  a  uniform,  long-established,  and  unques- 
tioned usage  will  be  regarded  by  the  courts  in  determining  the 
mode  in  which  powers  may  be  exercised,  and  to  a  reasonable 
extent  in  determining  the  scope  of  the  powers  themselves ;  but 
usage  can  have  no  room  for  operation  where  the  language  of 
the  enactment  is  plain  and  the  legislative  intent  is  clear  upon 
the  face  of  it.2 

Discretionary  Powers  not  Subject  to  Judicial  Control. 

§  58.     Power  to  do  an  act  is  often  conferred  upon  municipal 
corporations,  in  general  terms,  without  being  accompanied  by 

1  Hood  v.  Lynn,  1  Allen  (Mass.),  103,  1861.  Further  as  to  usage,  consult 
Willard  v.  Newburyport,  12  Pick.  227  ;  [Spaulding^.  Lowell,  23  Pick.  71 ; 
Smith,  v.  Cheshire,  13  Gray  (Mass.),  308,1859;  Butler  v.  Charlestown,  7 
Gray,  12, 16,  1856  ;  Benoit  v.  Conway,  10  Allen,  528. 

2  Smith  v.  Cheshire,  13  Gray,  308  ;  Butler  v.  Charlestown,  7  Gray,  12,  16 ; 
Sherwin  v.  Bugbee  (validity  of  school  meeting),  16  Vt.  439,  444,  where  Red- 
field,  J.,  remarks  :  "  In  construing  statutes  applicable  to  public  corporations, 
courts  will  attach  no  slight  weight  to  the  uniform  practice  under  them,  if 
this  practice  has  continued  for  a  considerable  period  of  time."  It  is  a  rule 
"  founded  on  reason  and  common  sense,''  says  the  Court  of  Appeals  of  Ma- 
ryland, that  "  doubtful  words  in  a  general  statute  may  be  expounded  with 
reference  to  a  general  usage  ;  and  when  a  statute  is  applicable  to  a  particu- 
lar place  only,  such  words  may  be  construed  by  usage  at  that  place."  Fra- 
zier  v.  Warfleld  (Inspection  Act  for  Baltimore),  13  Md.  279,  303 ;  S.  P.  Love 
v.  Hinckley,  Abt.  Adm.  436 ;  see,  also,  Bex  v.  Chester,  1  Maule  &  Selw.  101 ; 
Bex  v.  Salway,  9  B.  &  C.  424.  Where  the  true  construction  of  a  charter  ad- 
mits of  doubt,  and  the  construction  adopted  by  the  city  authorities  has  been 
acquiesced  in  generally,  and  acted  upon  by  third  persons  in  good  faith,  in 
their  transactions  with  the  city,  it  will  be  precluded  by  the  courts  in  actions 
by  such  third  parties  from  denying  its  construction  to  be  the  true  one. 
Van  Hostrup  v.  Madison  City  (on  railroad  bonds),  1  Wall.  (U.  S.)  291,  1863 ; 
Meyer  v.  Muscatine  (on  railroad  bonds),  ib.  384,  391.  Further  as  to  estop- 
pel, see  chapter  on  Contracts,  post. 


CH.  V.J  MUNICIPAL    CHARTERS.  107 

any  prescribed  mode  of  exercising  it.  In  such  cases  the  com- 
mon council,  or  governing  body,  necessarily  have,~to  a  greater 
or  less  extent,  a  discretion  as  to  the  manner  in  which  the  power 
shall  be  used.1  So  where  the  law  or  charter  confers  upon  the 
city  council,  or  local  legislature,  power  to  determine  upon  the 
expediency  or  necessity  of  measures  relating  to  the  local  gov- 
ernment, their  judgment  upon  matters  thus  committed  to  them, 
while  acting  within  the  scope  of  their  authority,  cannot  be 
controlled  by  the  courts.  In  such  ease,  the  decision  of  the 
proper  corporate  officers  is  final  and  conclusive,  unless  they 
transcend  their  powers.2  Thus,  for  example,  if  a  city  has 
power  to  grade  streets,  the  courts  will  not  inquire  into  the  ne- 
cessity of  the  exercise  of  it,  or  the  refusal  to  exercise  it,  nor 
whether  a  particular  grade  adopted,  or  a  particular  mode  of 
executing  the  grade,  is  judicious.3  So  if  a  city  has  power  to 
build  a  market-house,  the  courts  cannot  inquire  into  the  size 
and  fitness  of  the  building  for  the  object  intended.4 

§  59.     So,  also,  where,  by  its  charter,  a  municipal  corpora- 
tion is  empowered,  if  it  deems  the  public  welfare  or  conveni- 

1  Railroad  Co.  v.  Evansville  (power  to  subscribe  stock  and  to  borrow 
money),  15  Ind.  395, 1860  ;  Kelly  v.  Milwaukee,  18  Wis.  83 ;  Slack  v.  Rail- 
road Co.  13  B.  Mon.  1  ;  Bridgeport  v.  Railroad  Co.  15  Conn.  475,  501, 1843, 
per  Church,  J. ;  Harrison  v.  Baltimore,  1  Gill  (Md.),  264,  1843  ;  Cincinnati  v. 
Gwynne,  10  Ohio,  192 ;  Markle  v.  Akron,  14  Ohio,  586.  Where  a  municipal 
corporation  is  entrusted  with  the  execution  of  a  power,  and  is  not  confined 
to  a  particular  mode,  but  has  a  discretion  in  the  choice  of  means,  a  plain  case 
of  abuse  must  be  shown  resulting  in  an  injury  to  the  petitioner,  to  warrant 
an  injunction  against  the  corporation.  Page  v.  St.  Louis  (special  assess- 
ment), 20  Mo.  136,  1853;  Colton  v.  Hanchett,  13  111.  615;  Mayor  of  Balti- 
more v.  Gill,  31  Md.  375  ;  Holland  v.  Baltimore,  11  Md.  186 ;  Dodd  v.  Hart- 
ford, 25  Conn.  232 ;  Sheldon  «.  School  District,  ib.  224 ;  Lockwood  v.  St. 
Louis,  24  Mo.  20 ;  Dean  v.  Todd,  22  Mo.  91 ;  Mayor,  &c.  v.  Meserole,  26 
Wend.  132.  See  chapters  on  Contracts  and  Taxation,  post.  In  respect  to 
the  legislative  functions  of  a  municipal  body,  the  courts  are  bound  to  pre- 
sume that  they  will  exercise  any  discretion  with  which  they  are  clothed 
properly,  and  that  they  had  sufficient  reasons  for  doing  an  act,  the  result  of 
such  discretion.    Railroad  Co.  ».  Mayor  of  New  York,  1   Hilton,  562,  1858. 

2  Baker  v.  Boston,  12  Pick.  184 ;  Hovey.v.  Mayo,  43  Maine,  322,  1857  ;  Pay, 
petitioner,  15  Pick.  243,  1834 ;  Parks  v.  Boston,  8  Pick.  218,  1829. 

3  Hovey  v.  Mayo,  street  commissioner,  r43  Maine,  322,*1857  ;  Benjamin  v. 
Wheeler,  8  Gray,  409,  413, 1857. 

1  Spalding  v.  Lowell,  23  Pick.  71,  80, 1839. 


108  MUNICIPAL   CORPORATIONS.  [CH.  V. 

ence  requires  it,  to  open  streets  or  make  public  improvements 
thereon,  its  determination,  whether  wise  or  unwise,  cannot  he 
judicially  revised  or  corrected.1  On  the  ground  that  it  is  the 
province  of  the  municipal  authorities,  and  not  of  the  judicial 
tribunals,  to  determine  what  improvements  shall  be  made  in 
the  streets  and  highways  of  the  corporation,  the  court,  on 
application  of  citizens,  refused  to  compel  a  city  to  cover  over 
an  open  draining  canal  of  long  standing,  it  "  not  appearing  to 
be  a  nuisance  in  the  legal  sense  of  the  word."  2  So  where  it  is 
made  the  duty  of  a  city  to  remove,  as  far  as  they  may  be  able, 
every  nuisance  which  may  endanger  health,  the  courts  cannot 
control  the  manner  in  which  this  shall  be  done.3  And  gener- 
ally, the  judicial  tribunals  will  not  interfere  with  municipal 
corporations  in  their  internal  police  and  administrative  gov- 
ernment, unless  some  clear  right  has  been  withheld  or  wrong 
perpetrated.4 

Public  Powers  and  Trusts  Incapable  of  Delegation. 

§  60.  The  principle  is  a  plain  one,  that  the  public  powers 
or  trusts  devolved  by  law  or  charter  upon  the  council  or  gov- 
erning body,  to  be  exercised  by  it  when  and  in  such  manner 
as  it  shall  judge  best,  cannot  be  delegated  to  others.  Thus, 
where  by  charter  or  statute,  local  improvements,  to  be  as- 
sessed upon  the  adjacent  property  owners,  are  to  be  con- 
structed in  "  such  manner  as  the  common  council  shall  prescribe" 
by  ordinance,  it  is  not  competent  for  the  councif  to  pass  an 
ordinance  delegating  or  leaving  to  any  officer  or  committee  of 
the  corporation  the  power  to  determine  the  mode,  manner, 
or  plan  of  the  improvement.  Such  an  ordinance  is  void,  since 
powers  of  this  kind  must  be  exercised  in  strict  conformity 

1  Methodist  P.  Church  v.  Baltimore,  6  Gill  (Md.),  391, 1848.  Passing  or- 
dinances in  relation  to  opening,  &c,  of  streets,  is  the  exercise  of  legislative, 
not  judicial,  power.  Wiggin  v.  Mayor,  &c.  of  New  York,  9  Paige,  16, 1841 
See  chapter  on  Eminent  Domain,  post. 

2  Inhabitants  v.  New  Orleans,  14  La.  An.  452,  1859. 

3  Baker  v.  Boston,  12  Pick.  184,  1831 ;  see,  also,  Kelly  v.  Milwaukee1,  18 
"Wis.  83, 1864 ;  Goodrich  v.  Chicago,  20  111.  445.  Further  as  to  nuisances, 
see  chapter  on  Ordinances,  post. 

4  State  v.  Swearingen,  12  Geo.  23. 


CH.  V.]  MUNICIPAL   CHARTERS.  109 

with  the  charter  or  incorporating  act.1  So,  where  a  power, 
for  example,  the  power  to  issue  licenses,  is  granted  by  law,  or 
by  an  ordinance  duly  passed,  to  the  mayor  and  aldermen,  they 
are  constituted  to  act  as  one  deliberative  body,  to  the  end  that 
they  may  assist  each  other  by  their  united  wisdom  and  expe- 
rience, and  the  result  of  their  conference  be  the  ground  of 
their  determination ;  and  where  this  is  the  case,  the  board  of 
aldermen  cannot,  even  by  a  vote,  delegate  the  power  to  the 
mayor  alone.2  But  the  principle  that  municipal  powers  or 
discretion  cannot  be  delegated,  does  not  prevent  a  corpora- 
tion from  appointing  agents  and  empowering  them  to  make 
contracts,  nor  from  appointing  committees  and  investing  them 
with  duties  of  a  ministerial  or  administrative  character.3 

1  Thompson  v.  Schermerhorn,  6  N.  Y.  (2  Seld.)  92,  1851,  relating  to  grad- 
ing and  leveling  streets;  affirming  8.  C.  9  Barb.  152,  and  approving,  in  the 
main,  the  views  there  expressed,  by  Mr.  Justice  Cady.  Same  principle  ap- 
plied in  similar  case,  Euggles  v.  Collier,  43  Mo.  359,  1869,  holding  that 
where  the  charter  gave  the  city  power  to  require  streets  to  be  paved,  "in 
all  cases  where  the  city  council  shall  deem  it  necessary,"  it  could  not,  by 
ordinance,  make  the  mayor  the  judge  of  the  necessity  for  paving.  Re- 
affirmed but  distinguished,  Sheehan  ».  Gleeson,  46  Mo.  100,  1870;  East  St. 
Louis  ».  Wehrung,  50  I1L  28,  1869.  So,  where  the  charter  gives  the  city 
council  power  to  construct  sewers  of  such  "  dimensions  as  may  be  prescribed 
by  ordinance,"  the  council  cannot,  by  ordinance,  require  sewers  to  be  con- 
structed of  such  dimensions  as  may  be  deemed  requisite  by  the  city  en- 
gineer. St.  Louis  v.  Clemens,  43  Mo.  395,  1869,  overruling  St.  Louis  v.  Eters, 
36  Mo.  456.  See,  further,  State  v.  New  Brunswick,  1  Vroom  (N.  J.),  395, 
1863;  Meuser  v,  Eisdon,  36  CaL  239;  Hydes  v.  Joyes,  4  Bush  (Ky.),  464;  post, 
chapter  on  Taxation.  So,  where  a  charter  directed  the  common  council  to 
appoint  a  time  when  persons  interested  in  an  application  for  opening  a 
Street  would  be  heard,  the  council  must  itself  fix  the  time,  and  cannot  del- 
egate that  duty  to  the  clerk.  If  it  does  so,  its  proceedings  will  be  set  aside 
on  certiorari  or  other  direct  procedure.  State  v.  Jersey  City,  1  Dutch.  (N. 
J.)  309,  1855;  State  v.  Jersey  City,  2  ib.  444,  447.  A  municipal  corporation 
cannot  delegate  powers  conferred  upon  and  to  be  exercised  by  it  to  a  street 
committee  or  others.  White  v.  Mayor  (sidewalk  assessment),  2  Swan 
(Tenn.)j  364, 1S52.  See  Smith  v.  Morse,  2  Cal.  524;  Oakland  ».  Carpentier, 
13  Cal.  540;  Whyte  v.  Nashville,  2  Swan  (Tenn.),  364. 

2  Day  v.  Green,  4  Cush.  433, 1849,  and  cases  there  cited.  Further,  as  to 
delegation  of  power,  Coffin  v.  Nantucket,  5  Cush.  269,  1850;  Ruggles  v. 
Nantucket,  11  Cush.  433;  Clark  v.  Washington,  12  Wheat.  40,  54,  1827; 
Cooley,  Const  L&m.  284;  Railway  Co.  ^Baltimore,  21  Md.  93, 1863. 

3  Railroad  Co.  «.  Marion  Co.  36  Mo.  294;  Schenley  ».  Commonwealth,  36 
Pa.  St.  62.    See  chapters  on  Contracts  and  Corporate  Meetings,  post. 


110  MUNICIPAL   CORPORATIONS.  [CH.  V. 

Legislative  Powers  Incapable  of  Surrender. 

§  61.  Powers  are  conferred  upon  municipal  corporations 
for  public  purposes,  and  as  their  legislative  powers  cannot,  as 
we  have  just  seen,  be  delegated,  so  they  cannot  be  bargained 
or  bartered  away.  Such  corporations  may  make  authorized 
contracts,  but  they  have  no  power,  as  a  party,  to  make  con- 
tracts or  pass  by-laws  which  shall  cede  away,  control,  or 
embarrass  their  legislative  or  governmental  powers,  or  which 
shall  disable  them  from  performing  their  public  duties.1  The 
cases  cited  illustrate  this  salutary  principle  in  a  great  variety 
of  circumstances,  and,  for  the  protection  of  the  citizen,  it  is  of 
the  first  importance  that  it  shall  be  maintained  by  the  courts 
in  its  full  scope  and  vigor. 

Mandatory  and  Discretionary  Powers. 

§  62.  It  often  becomes  a  question  whether  a  duty,  imposed 
by  law  or  charter  upon  municipal  corporations  or  public  offi- 
cers, is  imperative  or  discretionary.     This  is  a  question  of  leg- 

1  Milhau  v.  Sharp,  27  N.  Y.  611,  1863;  Presb.  Church  v.  Mayor,  &c.  of  N. 
Y.  5  Cow.  538,  1826;  followed,  Stuveysant  v.  Mayor,  &c.  of  N.  Y.  7  Cow. 
588;  Sav.  Fund  v.  Philadelphia,  31  Pa.  St.  175;  Ex  parte  Mayor,  &c.  of  Al- 
bany, 23  Wend.  277;  Railroad  Co.  v.  Mayor,  &o.  1  Hilt.  562,  568;  Martin  v. 
Mayor,  &c.  1  Hill  (N.  Y.),  545,  1841;  Goszler  v.  Georgetown,  6  Wheat.  593; 
Sedgw.  Const,  and  St.  Law,  634;  State  v.  Graves,  19  Md.  351,  373,  1862; 
Bryson  «.  Philadelphia,  47  Pa.  St.  329;  Cooley,  Const.  Lim.  206;  Albany  St. 
6  Abb.  Pr.  R.  273;  Britton  ».  Mayor,  &c.  of  N.  Y.  21  How.  Pr.  R.  251;  New 
York  ii.  Second  Av.  &c.  Co.  32  N.  Y.  261;  Dingman  v.  People,  51  111.  277; 
Brimmer  v.  Boston,  102  Mass.  19,  1869;  Johnson  v.  Philadelphia,  60  Pa.  St. 
445;  State  v.  Cin.  Gas.  Co.  18  Ohio  St.  262,  295;  Jackson  v.  Bowman,  39 
Miss.  671,  1861 ;  Oakland  v.  Carpentier,  13  Cal.  540,  1859,  opinion  of  Said- 
win,  J. ;  Smith  v.  Morse,  2  Cal.  524.  Compare  Attorney  General  v.  Mayor, 
&c.  of  N.  Y.  3  Duer,  119,  131, 147;  Davis  o.  Same,  14  N.  Y.  (4  Kern.)  506, 
532;  Costar  v.  Brush,  25  Wend.  628.  One  legislature,  in  the  enactment 
of  laws,  cannot,  by  contract,  put  it  out  of  the  power  of  a  subsequent  legis- 
lature to  repeal  or  amend  them;  cannot  thus  surrender  a  portion  of  its 
sovereign  power.  Dibolt  v.  Ins.  and  Trust  Co.  1  Ohio  St.  564 ;  Plank  R. 
Co.  v.  Husted,  3  ib.  578,  per  Barthy,  C.  J.,  dissenting;  Matheny  v.  Golden, 
5  Ohio  St.  375;  Mott  v.  Pa.  Railroad  Co.  30  Pa.  St.  9, 1858.  But  see,  in 
Supreme  Court  of  the  United  States,  Home  v.  Rouse,  8  Wall.  430,  and 
prior  cases  cited,  and  the  vigorous  dissent,  ib.  441,  which  seems,  were  the 
question  open,  to  be  the  sound  view.'  Cooley,  Const.  Lim.  127,  280;  Sedg. 
Const,  and  St.  Law,  616-,  633. 


CH.  V.]  MUNICIPAL   CHARTERS.  Ill 

islative  intention.  The  words  that  a  corporation,  or  officer, 
"may"  act  in  a  certain  way,  or  that  it.  "  shall  be  lawful'' 
to  act  in  a  certain  way,  may  be  imperative.  On  this  sub- 
j  ect  the  cases  sustain  the  doctrine,  that  what  public  corpo- 
rations or  officers  are  empowered  to  do  for  others,  and  which 
is  beneficial  to  them  to  have  done,  the  law  holds  they  ought 
to  do.  The  power  is  conferred  for  the  benefit  of  others ;  and 
the  intent  of  the  legislature,  which  is  the  test  in  such  cases,  or- 
dinarily seems,  under  such  circumstances,  to  be,  to  impose  a 
positive  and  absolute  duty.  But,  under  other  circumstances, 
where  the  act  to  be  done  does  not  affect  third  persons,  and  is 
not  clearly  beneficial  to  them  or  the  public,  and  the  means 
for  its  performance  are  not  supplied,  the  words,  "  may  "  do  an 
act,  or  it  is  "  lawful  "  to  do  it,  do  not  mean  "  must,"  but  rath- 
er indicate  an  intent  in  the  legislature  to  confer  a  discretion- 
ary power.1  Each  case  must  be  largely  decided  on  its  own 
circumstances. 

1  Mason  v.  Fearson  (duty  of  city  under  tax  law),  9  How.  (TJ.  S.)  248,  259, 
per  Woodbury,  J.,  and  authorities  there  cited.  It  is  the  settled  docrine  in 
New  York,  that  where  a  public  or  municipal  corporation  or  body  is  invested 
with  power  to  do  an  act  which  the  public  interests  require  to  be  done,  and 
have  the  means  for  its  complete  performance  placed  at  its  disposal,  not  only 
the  execution,  but  the  proper  execution  of  the  power,  may  be  insisted  on  as 
a  duty,  though  the  statute  conferring  it  be  only  permissive  in  its  terms. 
Mayor,  &c.  of  New  York  v.  Furze,  3  Hill,  612,  holding  corporation  liable  for 
omitting  its  duty  to  repair  sewers,  although  it  would  not  have  been  liable 
for  omitting  to  have  constructed  them  originally.  Approved,  16  N.  Y.  162, 
note,  per  Selden,  J. ;  per  Denio,  J.,  9  N.  Y.  168,  458 ;  per  Allen,  J.,  ib.  461.  See, 
however,  the  chapter  on  Actions,  post. 

When  words  are  imperative,  and  when  directory,  see,  further :  Grant  Corp. 
34,  35  ;  Rex  v.  Mayor,  &c.  of  Hastings,  5  Barn.  &  Aid.  592,  note  ;  Attorney 
General-  v.  Lock,  3  Atk.  164;  Rex  v.  Mayor,  &c.  of  Chester,  1  Maule  &  Sel. 
101 ;  Rex  v.  Bailiffs,  &c.  1  Barn.  &  Cress.  86  ;  3  ib.  272  ;  Railroad  Co.  v.  Platte 
Co.  42  Mo.  171 ;  Railroad  Co.  v.  Buchanan  Co.  39  Mo.  485 ;  Goodrich  v.  Chi- 
cago, 20  111.  445,  authority  to  city  "  to  remove  all  obstructions  in  the  har- 
bor," held  not  imperative,  ib.  Ottawa  v.  People,  48  111.  233 ;  Carr  v.  North 
Liberties,  35  Pa.  St.  324 ;  Joliet  v.  Verley,  35  111.  58  ;  Wilson  v.  Mayor,  &c. 
1  Denio,  595.  An  act  that  "  the  city  council  are  hereby  authorized  to  elect 
a  recorder,  in  whom  they  may  vest  exclusive  jurisdiction  of  all  viola- 
tions of  their  ordinances,"  imposes  the  duty  to  elect  this  officer.  The  lan- 
guage is  injunctive,  and  not  discretionary.  Vason  v.  Augusta,  38  Geo.  542, 
1868.  The  expression,  in  a  supplemental  charter,  "  it  shall  be  lawful,"  con- 
strued not  to  enjoin  an  imperative  duty  on  the  corporation.  Seiple  e.  Eliz- 
abeth, 3  Dutch.  (N.  J.)  407. 


112  MUNICIPAL   CORPORATIONS.  [CH.    V. 

§  63.  It  is,  also,  sometimes  difficult  to  determine  whether 
specific  duties  prescribed  by  the  charter  or  incorporating  act 
rest  upon  the  corporation,  or  upon  the  aldermen  or  other  officers 
named,  in  their  individual  capacity.  The  question  is  one  of 
construction.  The  general  rule  is  this :  that  where  powers 
pertaining  to  the  duties  of  a  corporation  are  conferred  upon 
those  who  officially  represent  the  corporation,  these  powers, 
unless  the  contrary  appear,  are  deemed  to  be  conferred  upon 
them  in  their  corporate,  not  their  individual,  character  —  in 
other  words,  upon  the  corporation  itself.1 

Exemption  of  Revenues  from  Judicial  Seizure. 

§  64.  Municipal  corporations  are  instituted  by  the  supreme 
authority  of  a  state  for  the  public  good.  They  exercise,  by 
delegation  from  the  legislature,  a  portion  of  the  sovereign 
power.  The  main  object  of  their  creation  is  to  act  as  admin- 
istrative agencies  for  the  state,  and  to  provide  for  the  police 
and  local  government  of  designated  civil  divisions  of  its  terri- 
tory.2 To  this  end  they  are  invested'with  governmental  pow- 
ers and  charged  with  civil,  political,  and  municipal  duties.  To 
enable  them  beneficially  to  exercise  these  powers  and  dis- 
charge these  duties,  they  are  clothed  with  the  authority  to 
raise  revenues  by  taxation  and  in  other  modes,  as  by  fines  and 
penalties.  The  revenue  of  the  public  corporation  is  the  essen- 
tial means  by  which  it  is  enabled  to  perform  its  appointed 
work.  Deprived  of  its  regular  and  adequate  supply  of  revenue, 
such  a  corporation  is  practically  destroyed,  and  the  very  ends 
of  its  erection  thwarted.  Based  upon  considerations  of  this 
character,  it  is  the  settled  doctrine  of  the  law  that  the  taxes 
and  public  revenues  of  such  corporations  cannot  be  seized 
under  execution  against  them.  Such  taxes  and  revenues  can- 
not be  seized  either  in  the  treasury  or  when  in  transit  to  it. 
Judgments  rendered  for  taxes,  and  the  proceeds  of  such  judg- 
ments in  the  hands  of  officers  of  the  law,  are  not  subject  to  ex- 
ecution unless  so  declared  by  statute.     The  doctrine  of  the  in- 

1  Conrad  v.  Ithaca,  16  N.  Y.   158,  per  Selden,  J.,  p.  170 ;    Hickok  v.  Platts- 
burg,  15  Barb.  S.  C.  427  ;  Glidden  v.  Unity,  10  Fost.  (N.  H.)  104, 119. 
'  Ante,  p.  17,  et  aeq;  p.  28,  Sec.  9. 


CH.  V.]  MUNICIPAL   CHARTERS.  113 

violability  of  the  public  revenues  by  the  creditor  is  main- 
tained, although  the  corporation  is  in  debt,  and  has  no  means 
of  payment  but  the  taxes  which  it  is  authorized  to  collect.1 

§  65.  Upon  similar  considerations  of  public  policy  and 
convenience,  municipal  corporations  and  their  officers  have 
usually,  though  not  uniformly,  been  considered  not  to  be  subject 
to  garnishment,  although  private  corporations,  equally  with 
natural  persons,  are  liable  to  this  process.  The  cases  on  the 
subject,  as  respects  municipal  corporations,  are  referred  to  in 
the  note,  and  it  will  be  seen,  on  examination,  that  some  of 
them  turn  on  the  construction  of  particular  statutes,  and  that 
the  judges  differ  in  opinion  respecting  the  policy  and  expedi- 
ency of  subjecting,  upon  general  principles,  such  corporations 
to  the  process  of  garnishment.  The  author  suggests,  where 
the  question  is  left  entirely  open  by  statute,  that,  on  principle, 
a  municipal  corporation  should  be  exempt  from  liability  of 
this  character  with  respect  to  its  revenues  and  the  salaries  of 
its  officers,  but  that  where  it  owes  an  ordinary  debt  to  a  third 

1  Edgerton  v.  Municipality,  1  La.  An.  435,  1846,  where  the  subject  is  ably 
discussed  in  the  opinion  of  Rost,  J.  He  says :  "  On  the  first  view  of  this 
question  there  is  something  very  repugnant  to  the  moral  sense  in  the  idea 
that  a  municipal  corporation  should  contract  debts,  and  that,  having  no  re- 
sources but  the  taxes  which  are  due  to  it,  these  should  not  be  subjected,  by 
legal  process,  to  the  satisfaction  of  its  creditors.  This  consideration,  de- 
duced from  the  principles  of  moral  duty,  has  only  given  way  to  the  more 
enlarged  contemplation  of  the  great  and  paramount  interests  of  public  or- 
der and  the  principles  of  government."  76.  440.  S.  P.  Municipality  v. 
Hart,  6  La.  Ah.  570,  1851.  This  case  holds  that  a  judgment  in  favor  of  the 
corporation  for  a  fine  incurred  for  a  violation  of  a  municipal  ordinance  is 
exempt  from  execution  ;  but  that  an  ordinary  debt  due  the  corporation  (as 
on  a  bond  taken  for  paving)  is  liable  to  be  seized.  But  quaere  f  In  Edgerton 
v.  Municipality,  supra,  it  was  decided  that  the  public  taxes  and  revenues  of 
the  corporation  could  not  be  seized  under  execution,  notwithstanding  the 
general  provision  of  the  Code  of  Practice  of  Louisiana,  authorizing  the 
seizure,  under  execution,  of  "  all  sums  of  money  which  may  be  due  to  the 
debtor  in  whatsoever  right," —  this  general  language  being  construed  to  re- 
fer alone  to  rights  of  property,  and  not  to  taxes  imposed  for  the  protection  of 
those  rights.  So  in  the  Railroad  Co.  v.  Municipality,  7  La.  An.  148,  1852,  it 
was  held  that  perpetual  ground  rents,  created  and  intended  by  the  legisla- 
ture to  form  part  of  the  permanent  revenue  of  the  city  to  enable  it  to  exer- 
cise its  municipal  powers  of  police  and  local  government,  cannot  be  sold  on 
execution  against  the  corporation.    See  chapter  on  Taxation,  post. 

15 


114  MUNICIPAL   CORPORATIONS.  [CH.  V. 

person,  the  mere  inconvenience  of  having  to  answer  as  gar- 
nishee furnishes  no  sufficient  reason  for  withdrawing  it  from 
the  reach  of  the  remedies  which  the  law  gives  to  creditors  of 
natural  persons  and  private  corporations.1 

1  The  Supreme  Court  of  Pennsylvania  is  of  the  opinion  that,  on  prin- 
ciple, a  municipal  corporation  or  its  officers  are  not  subject  to  garnishment 
on  attachment  or  execution,  and  that,  by  the  statutes  of  that  state,  they 
are  not  made  liable  thereto.  Erie  v.  Knapp,  29  Pa.  St.  173, 1857;  Bulkley 
v.  Eckert,  3  Barr  (Pa.),  368,  per  Sergeant,  J. ;  S.  P.  McDougal  v.  Supervisors,  4 
Minn.  184;  Bradley  v.  Richmond,  6  Vt.  121;  Burnham  v.  Fond  du  Lac,  15 
Wis.  193, 1862,  where  the  inconvenience  of  the  opposite  doctrine  is  forcibly 
pointed  out  by  Paine,  J.;  Drake  on  Attach.  Sec.  516,  10;  Hadley  v.  Pea- 
body,  13  Gray,  200. 

In  Missouri,  also,  it  is  held,  upon  general  principles,  that  municipal  cor- 
porations are  not  subject  to  garnishment  on  account  of  salary  due  to  their 
officers.  Hawthorn  v.  St.  Louis,  11  Mo.  59,  1847 ;  S.  P.  Fortune  v.  St.  Louis, 
23  Mo.  239, 1856,  where  the  decision  is  placed  upon  the  broad  ground  that 
such  corporations  are  not  liable  to  be  garnished,  and  not  on  the  ground 
that  an  officer's  salary  is  exempt  from  such  process.  See,  also,  Neuer  v. 
Fallon,  18  Mo.  277.  In  Connecticut,  public  officers  having  money  in  their 
hands,  to  which  an  individual  is  entitled,  are  not  subject  to  garnishment  at. 
the  suit  of  the  creditors  of  such  individual.  Stillman  v.  Isham,  11  Conn. 
123, 1835,  and  cases  cited;  Ward  v.  County  of  Hartford,  12  ib.  404, 408.  And 
in  that  state,  a  county  not  having  power  to  contract  a  debt  for  which  an 
action  will  lie  against  it,  is  not  subject  to  garnishment  in  such  a  case. 
Ward  v.  County  of  Hartford,  12  Conn.  404.  But  under  a  statute  enabling 
towns  and  cities  to  contract  debts,  and  which  provides  that  debts  due  from 
"any  person"  to  a  debtor  may  be  attached,  these  corporations  may  be 
factorised  or  garnished.    Bray  v.  Wallingford,  20  Conn.  416,  1850. 

In  Smoot  v.  Hart,  33  Ala.  69,  1858,  it  is  held  that  the  marshal  of  a 
city  may  be  garnished  for  city  funds  in  his  hands:  whether  the  treasurer 
could  be  garnished  not  decided.  Mayor  v.  Rowland,  26  Ala.  498,  holds  that 
a  municipal  corporation  cannot  be  garnished  as  respects  accruing  salaries 
to  its  officers.  See,  also,  Clark  v.  School  Com.  36  Ala.  621.  In  Massachusetts, 
a  county  is  not  chargable  as  a  garnishee  for  jurors'  fees.  Williams  v.  Board- 
man,  9  Allen,  570.  In  Maryland,  notwithstanding  a  general  statute  of  the 
state  authorized  the  garnishment  of  any  "person  or  persons  whatever,  cor- 
porate or  sole,"  it  was  held  that  municipalities  were  not  included,  and  that, 
upon  general  grounds  of  public  policy  and  convenience,  the  city  could  not 
be  garnished  in  respect  of  money  due  from  the  salaries  of  its  officers, 
although  the  officer  whose  salary  was  attached  could  have  sued  the  city 
therefor.  Baltimore  v.  Root,  8  Md.  95,  1855.  The  city,  in  this  case,  was 
garnished  in  respect  of  money  due  from  it  to  a  police  officer. 

But  in  New  Hampshire,  under  a  statute  making  "  any  corporation  possessed 
of  any  money"  of  the  debtor  subject  to  garnishment,  a  town  was  held  to 
be  included.  Whidden  ».  Drake,  5  N.  H.  13.  See  Brown  v.  Heath,  45 
N.  H.  185.    In  Iowa,  it  was  held  that  the  words  "debtor  or  person  holding 


CH.  V.J  MUNICIPAL   CHARTERS.  115 

property,"  in  the  attachment  act,  extended  to  municipal  corporations,  and 
that  they  were  subject  to  garnishment  with  respect  to  ordinary  debts  which 
they  owed  the  main  debtor.  Wales  v.  Muscatine,  4  Iowa,  302,  1856.  The 
decision  of  the  court  asserts  the  liability  to  garnishment  on  general  prin- 
ciples; but  subsequently  the  legislature  enacted  that  "a  municipal  or  polit- 
ical corporation  should  no't  be  garnished."  Rev.  1860,  Sec.  3196.  Requisites 
of  notice  to  corporation,  Claflin  v.  Iowa  City,  12  Iowa,  284;  Williams  v. 
Kenney,  98  Mass.  142.  In  Ohio,  under  a  statute  which  provides  that  "  any 
claims  or  choses  in  action,  due  or  to  become  due"  to  the  judgment  debtor, 
or  "  money  which  he  may  have  in  the  hands  of  any  person,  body  politic  or 
i  corporate,"  are  subject  to  execution,  salaries  of  officers  of  incorporated 
cities,  due  and  unpaid,  may  be  subjected  by  the  judgment  creditors  of 
such  officers  to  the  payment  of  their  judgments,  and  municipal  corpora- 
tions may  be  garnished  with  respect  to  such  salaries.  The  court  admits 
the  conflict  in  the  decisions  of  other  states  upon  similar  statutes,  but  re- 
gards the  construction  above  given  as  being  in  accordance  with  public 
policy  and  the  meaning  of  the  statute.  Newark  v.  Funk,  15  Ohio  St.  462, 
1864.  In  IUinois,  municipal  corporations  are  not  subject  to  garnishment 
in  any  case,  no  matter  what  may  be  the  character  of  the  indebtedness. 
This  position  is  maintained  by  Lawrence,  J.,  with  great  force.  Merwin  v. 
Chicago,  45  111.  133, 1867. 


116  MUNICIPAL   CORPORATIONS.  [CH.   VI. 

CHAPTER  VI. 

Municipal  Charters. —  Continued. 

Special  Powers  and  Special  Limitations. 

§  66.  While  municipal  corporations  are  instituted  for  the. 
same  general  purposes,  heretofore  explained,1  and  while  there 
is  a  striking  resemblance  in  the  authority  with  which  they  are 
clothed,  yet,  except  when  organized  under  general  acts,  the 
powers  given  to  them  are  various,  both  in  character  and  ex- 
tent.2 True  policy,  indeed,  requires,  as  before  suggested,  that 
the  powers  of  these  bodies  should,  in  general,  be  confined  to 
subjects  connected  with  civil  government  and  local  adminis- 
tration, but  legislatures  are  usually  liberal  in  grants  of  this 
character,  and  there  is  no  limit  to  the  faculties  and  capacities 
with  which  municipal  creations  may  be  endowed,  unless  that 
limit  is  contained  in  the  state  constitution.3  The  leading  pow- 
ers ordinarily  exercised  by  municipalities,  such  as  those  re- 
lating to  contracts,  eminent  domain,  streets,  taxation,  ordi- 
nances, corporate  officers,  actions,  and  the  like,  will  be,  here- 
after, separately  treated.  But  it  will  be  convenient  to  notice, 
in  this  place,  some  special  powers  usually  or  often  con- 
ferred upon  municipalities,  and  some  special  limitations  upon 
ordinary  municipal  powers,  and  the  construction  which  such 
provisions  have  judicially  received.  We  shall  here  notice  the 
following  subjects  as  they  relate  to  municipal  corporations: 
1.  Wharves.  2.  Ferries.  3.  Borrowing  Money.  4.  Limita- 
tions on  the  Power  to  Create  Debts.  5.  Rewards  for  Offend- 
ers. 6.  Public  Buildings.  7.  Police  Powers  and  Regulations. 
8.  Prevention  of  Fires.  9.  Quarantine  and  Health.  10.  In- 
demnifying Officers.  11.  Furnishing  Entertainments.  12. 
Impounding  Animals.  13.  Party  Walls.  14.  Public  Defence. 
15.  Aid  to  Railway  Companies. 

1  Ante,  pp.  17,  28-32  ;  supra,  Sees.  63,  64, 

»  Ante,  pp.  56-59. 

8  Aurora  v.  West,  9  Ind.  74,  1857 ;  ante,  Chap.  IV. 


CH.  VI.]  MUNICIPAL   CHARTERS  —  WHARVES.  117 

Wharves. 

%  67.  Among  the  powers  of  a  special  and  extra-municipal 
nature  frequently  conferred  by  the  legislature  upon  municipal 
corporations  bordering  upon  the  high  seas  or  navigable  waters, 
is  the  authority  to  erect  wharves,  and  charge  wharfage  as  a 
compensation  for  keeping  the  same  and  their  approaches  in  a 
proper  and  safe  condition  for  the  landing,  loading,  and  un- 
loading of  vessels.1  The  authority  of  the  State  over  navigable 
waters,  and  the  shores,  is,  of  course,  subject  to  the  constitution 
of  the  United  States,  and  the  laws  made  in  pursuance  thereof 
regulating  commerce,  and  the  admiralty  jurisdiction  of  the 
federal  courts.2  But  although  the  power  to  erect  wharves  and 
charge  wharfage  is  not  strictly  one  relating  to  municipalities, 
it  is,  nevertheless,  competent  for  the  legislature  to  make  them, 
in  such  measure  as  it  deems  expedient,  the  repository  of  it.3 

1  Commonwealth  v.  Alger,  7  Cush.  53,  82,  1851 ;  Pollard's  Lessee  v.  Ha- 
gan,  3  How.  (U.  S.)  212 ;  Municipality  ».  Pease.  2  La.  An.  538,  1847  ;  Wors- 
ley  v.  Municipality,  9  Rob.  (La.)  324;  New  Orleans  v.  United  States,  10  Pet. 
662,  737.    The  Wharf  Case,  3  Bland  Ch.  (Md.)  383. 

2  State  and  authorized  municipal  pilot  and  harbor  regulations,  when  not  in 
conflict  with  the  federal  constitution  or  federal  legislation,  are  valid.  Steam- 
ship Co.  v.  Joliffe,  2  Wall.  450  ;  Cooley  v.  Board  of  Wardens,  12  How.  (U.  S.) 
299 ;  Pollard's  Lessee  v.  Hagan,  3  ib.  212 ;  Cisco  v.  Roberts,  36  N.  Y.  292 ; 
Port  Wardens  v.  Ship,  &c.  14  La.  An.  289, 1859  ;  Same  v.  Pratt,  10  Rob.  (La.) 
459;  Chapman  v.  Miller  (pilotage  fee),  2  Speers  (South  Car.),  Law,  769;  Al- 
exander v.  Railroad  Co.  (duty  on  tonnage),  3  Strob.  (South  Car.)  Law,  594, 
1847  ;  State  v.  City  Council,  4  Rich.  (South  Car.)  Law,  286;  Commonwealth 
<o.  Alger,  7  Cush.  53,  82,  1850 ;  Worsley  v.  Municipality,  above  cited.  But 
state  enactments,  which  amount  to  a  regulation  of  commerce  or  impose  a 
duty  on  tonnage  are,  of  course,  void.  Steamship  Co.  v.  Port  Wardens,  6 
Wall.  31, 1867.    See,  also,  United  States  v.  Duluth,  1  Dillon,  C.  C.  469. 

s  Fuller  v.  Edings,  11  Rich.  (South  Car.)  Law,  239,  1858 ;  Waddington  v. 
St.  Louis,  14  Mo.  190,  1851;  Baltimore  v.  White,  2  Gill  (Md.),  444,1845; 
Wilson  v.  Inloes,  11  Gill  &  J.  (Md.)  351.  The  owner  of  a  private  wharf, 
whose  land  is  compulsorily  taken  for  a  public  wharf,  is  not  necessarily  en- 
titled to  be  compensated  for  loss  of  income  from  his  private  wharf,  resulting 
in  the  establishment  of  the  public  wharf  near  to  the  private  one.  Fuller  v. 
Edings,  supra.  The  grant  of  an  exclusive  right  to  keep  a  wharf,  in  order  to 
secure  its  erection,  does  not  violate  the  provision  of  a  state  constitution, 
declaring  "  that  no  man  or  set  of  men  are  entitled  to  exclusive,  separate, 
public  emoluments  or  privileges  from  the  community,  but  in  consideration 
of  public  services."  Such  an  improvement  is  beneficial  to  the  public,  and, 
in  order  to  secure  it,  the  exclusive  profits  for  a  given  period  may  be  granted 
to  the  contractor.  Martin  v.  O'Brien,  34  Miss.  (5  George)  21, 1857 ;  see,  also, 
Geiger  v.  Filor,  8  Flor.  325, 1859. 


118  MUNICIPAL   CORPORATIONS.  [CH.    VI. 

It  may  authorize  a  municipal  corporation  to  establish  a  pub- 
lic wharf  upon  private  property  on  making  compensation  to 
the  owner  of  the  land ;  and  the  power,  when  conferred  upon 
the  municipality,  cannot  be  arrested  by  an  offer  on  the  part  of 
the  land-owner  himself  to  erect  a  wharf.1 

§  68.  Wharves,  piers,  quays,  and  landing-places,  may  be 
either  public  or  private.  They  may  be,  in  their  nature,  public, 
although  the  property  be  owned  by  an  individual.  If  private, 
the  public  have  no  right  to  use  the  erection  without  the  owner's 
consent,  express  or  implied ;  if  public,  they  may  be  used  by 
persons  generally  upon  the  payment  of  a  reasonable  compen- 
sation. Whether  they  are  public  or  private  depends,  in  case 
of  dispute,  upon  circumstances,  such  as  the  purpose  for  which 
they  were  built,  the  uses  to  which  they  have  been  applied,  the 
place  where  located,  and  the  character  of  the  structure.2 

§  69.  The  keeping  of  a  wharf  or  dock,  erected  and  opened 
to  the  public,  like  the  keeping  of  an  inn,  confers  a  general 
license  to  boats  and  vessels  to  occupy  it  for  lawful  purposes — a 
license  which  can  only  be  terminated  by  notice  and  request  to 
remove  the  vessel.3  When  thus  established,  the  owner  at 
common  law  is,  as  respects  the  public,  bound  to  keep  it  in 
good  repair.  In  view  of  these  obligations  on  the  part  of  the 
owner  of  the  wharf,  the  common  law  gave  him  the  right  to 
distrain  for  his  wharfage  or  toll.4 

1  Waddington  v.  St.  Louis,  above  cited. 

2  Dutton  v.  Strong,  1  Black  (U.  S.),  23,  1861.  The  owner  of  a  private  pier 
may,  it  was  held  in  this  case,  cut  loose  a  vessel  attached  to  it  without  a  li- 
cense if  the  pier  be  thereby  endangered,  no  matter  how  great  the  stress  of 
the  weather  or  the  peril  to  which  the  vessel  may  be  thereby  subjected. 

3  Heeney  v.  Heeney,  2  Denio,  625;  Mcoll  v.  Gardner,  13  Wend.  289,  1835; 
Lansing  v.  Smith,  4  Wend.  9 ;  Dutton  v.  Strong,  1  Black,  23,  distinguithed 
from  Heeney  «.  Heeney,  supra. 

*  Hale  de  Port.  Maris,  77 ;  Bradley  on  Distress,  133 ;  Mcoll  v.  Gardner,  13 
Wend.  289.  The  right  of  distress  is  regulated  by  statute  in  the  city  of  New 
York,  and  it  was  here  held,  that  where  wharfage  accrued  in  the  seventh 
ward,  the  owner  of  the  wharf  might  distrain  therefor  in  the  eleventh  ward. 
13  Wend.  289.  See  Lansing  v.  Smith,  4  Wend.  9,  21.  Wharfage  is  not 
properly  a  tax,  like  that  levied  to  support  government,  but  rather  compen- 
sation paid  by  owners  of  vessels  for  accommodation  for  their  boats  and 
merchandize.    Swartz  ».  Flatboats,  14  La.  An.  243,  1859.    If  a  city  is  en- 


CH.  VI.]  MUNICIPAL    CHARTERS  —  WHARVES.  119 

§  70.  By  the  common  law,  the  riparian  owner  has  the  right 
to  establish  a  wharf  on  his  own  soil,  this  being  a  lawful  use  of 
the  land.1  The  right  is  judicially  recognized  in  this  country, 
and  riparian  proprietors  on  ocean,  lake,  or  navigable  river, 
have,  in  virtue  of  their  proprietorship,  and  without  special 
legislative  authority,  the  right  to  erect  wharves,  quays,  piers, 
and  landing  places  on  the  shore,  if  these  conform  to  the  regu- 
lations of  the  state  for  the  protection  of  the  public,  and  do  not 
become  a  nuisance  by  obstructing  the  paramount  right  of 
navigation.  This  right  has  been  exercised  by  the  owners  of 
the  adjacent  land  from  the  first  settlement  of  the  country. 
The  right  terminates  at  the  point  of  navigability,  unless 
special  authority  be  conferred,  because  at  this  point  the  neces- 
sity for  such  erections  ordinarily  ceases.  Such  structures  are 
presumptively  lawful  where  they  are  confined  to  the  shore, 
and  no  positive  law  is  violated  in  their  erection.2 

§  71.  The  rights  of  riparian  proprietors,  in  respect  to  the 
erection  of  wharves,  are  subject  to  such  reasonable  limitations 
and  restraints  as  the  legislature  may  think  it  necessary  and 
expedient  to  impose.     Therefore  it  is  competent  for  the  legis- 

titled  to  the  wharfage  from  public  wharfs,  and  the  owner  of  a  lot  adjacent 
to  such  wharf  receives  wharfage,  he  is  liable  to  the  city  therefor.  Balti- 
more v.  White  (assumpsit),  2  Gill  (Md.),  444.  The  right  as  between  private 
persons  and  a  city  corporation,  to  the  moneys  collected  for  wharfage,  may 
be  tried  in  an  action  for  money  had  and  received.  Murphy  v.  City  Council, 
11  Ala.  586, 1847.     See  Grant  v.  Davenport,  18  Iowa,  179. 

1  Mcoll  s.  Gardner,  13  Wend.  289,  1835,  per  Nelson,  J. ;  Lansing  v.  Smith, 
4  Wend.  9,  affirming  S.  C.  8  Cow.  146;  Heeney  v.  Heeney,  2  Denio,  625. 

*  Heeney  v.  Heeney,  2  Denio,  625 ;  Dutton  v.  Strong  (action  of  trespass 
by  owner  of  vessel  against  owner  of  private  pier  for  cutting  the  vessel 
loose),  1  Black  (U.  S.),  23,  1861,  distinguished  from  Heeney  v.  Heeney, 
above  cited.  Same  principle  re-affirmed,  Railroad  Co.  v.  Schurmier,  7 
Wall.  272;  Yates  v.  Milwaukee,  10  Wall.  497;  State  v.  Jersey  City,  1  Dutch. 
(N.  J.)  525,  530;  Wetmore  «.  Brooklyn  Gas  Co.  42  N.  Y.  384;  Galveston  v. 
Menard,  23  Texas,  349 ;  Grant  v.  Davenport,  18  Iowa,  179,  per  Wright,  J. 
But  in  California,  see  Dana  v.  Jackson,  &c.  Co.  31  Cal.  118.  As  to  right  to 
erect  wharf  by  other  than  riparian  owner,  on  a  tidal  river,  below  high 
water  mark,  quxre,  see  Hagan  v.  Campbell,  8  Port.  (Ala.)  9.  In  this  case  it 
is  said :  "  It  is  clear  that  no  part  of  such  erections  can  be  rested  upon  the 
lands  of  the  riparian  proprietor,  nor  can  he  be  excluded  from  the  use  of 
the  water,  or  denied  other  riparian  rights."  See  People  v.  Davidson,  30 
Cal.  379. 


120  MUNICIPAL    CORPORATIONS.  [CH.    VI. 

lature  to  pass  acts  establishing  harbor  and  dock  lines,  and  to 
take  away  the  right  of  the  proprietors  to  build  wharves  on 
their  own  land  beyond  the  lines,  even  when  such  wharves 
would  be  no  actual  injury  to  navigation.1 

§  72.  While  the  riparian  proprietor  has  the  right  to  erect 
wharves,  which  are  private  in  their  nature,  but  which  may  be 
used  by  the  public  by  the  consent  of  the  owner,  express  or 
implied,  the  right  to  erect  public  wharves  and  to  demand  tolls 
or  fixed  rates  of  wharfage  is,  according  to  the  better  view,  a 
franchise,  which  must  have  its  origin  in  a  legislative  grant.2 

§  73.  If  a  municipality  is  itself  a  riparian  proprietor,  this  will 
probably  give  to  it,  in  the  absence  of  any  restrictive  provision 

1  Commonwealth  v.  Alger,  7  Cush.  53,  1851.  This  subject  is  here  very 
fully  and  learnedly  discussed  and  examined.  See,  also,  Hart  v.  Mayor,  9 
Wend.  571,  valuable  case,  affirming  3  Paige,  213;  Wetmore  v.  Brooklyn  Gas 
Co.  42  N.  Y.  384;  People  v.  Vanderbilt,  26  N.  Y.  287;  Same  v.  Same,  28  N. 
Y.  396;  Pollard's  Lessee  v.  Hagan,  3  How.  (U.  S.)  212;  Hagan  c.  Campbell, 
8  Port.  (Ala.)  9;  Mobile  ».  Eslava,  9  Port.  (Ala.)  577,  1839;  Railroad  Co.  v. 
Winthrop,  5  La.  An.  36.  In  Yates  v.  Milwaukee,  10  Wall.  497,  Mr.  Justice 
Miller,  on  behalf  of  the  court,  speaking  of  an  existing  wharf,  denied  that 
the  city  of  Milwaukee,  under  the  power  to  establish  dock  and  wharf  lines, 
could  create  an  artificial  and  imaginary  dock  line,  hundreds  of  feet  away 
from  the  navigable  part  of  the  river,  and  without  making  the  river  navi- 
gable up  to  that  line,  deprive  the  riparian  owners  of  the  right  to  avail 
themselves  of  the  advantages  of  the  navigable  channel  by  building  wharves 
and  docks  to  it  for  that  purpose,  and  said,  that  if  the  city  deemed  the  re- 
moval of  the  wharf  in  question  necessary  in  the  prosecution  of  any  general 
scheme  of  widening  the  channel  or  improving  the  navigation  of  the  river, 
it  must  first  make  the  owner  compensation  for  his  property  thus  taken  for 
the  public  use. 

Municipal  control,  under  legislative  grant,  over  right  of  riparian  owner 
to  wharf  out :  Baltimore  v.  White,  2  Gill  (Md.),  444, 1845 ;  Wilson  v.  Inloes, 
11  Gill  &  J.  (Md.)  351.  Where,  under  acts  of  the  legislature,  a  city  had 
the  power  to  refuse  assent  to  riparian  owners  to  erect  wharves,  or  to 
allow  it  upon  such  terms  as  they  deemed  beneficial  to  navigation  and  the 
use  of  the  port  of  that  city,  it  was  held,  that  the  city  might  make  the 
grant  of  the  right  to  erect  a  wharf  upon  the  condition  that  its  exterior 
margin  should  constitute  a  public  wharf.    Baltimore  v.  White,  supra. 

2  People  v.  Wharf  Company,  31  Cal.  34 ;  The  Wharf  Case,  3  Bland  Ch. 
(Md.)  383;  Wiswall.v.  Hall,  3  Paige  Ch.  313;.  Houck  on  Rivers,  Sec.  282; 
Thompson  v.  Mayor,  11  N.  Y.  115.  See,  as  to  navigator's  right  to  moor  and 
land,  Bainbridge  v.  Sherlock,  29  Ind.  364 ;  Talbott  v.  Grace,  30  Ind.  .389 ; 
Jeffersonville  v.  Ferry  Company,  27  Ind.  100. 


CH.  VI.]  MUNICIPAL   CHARTERS WHARVES.  121 

in  its  organic  act,  the  implied  authority  to  erect  a  wharf 
thereon,  and  it  would  have  the  incidental  right,  the  same  as  a 
private  owner,  to  charge  compensation  for  its  use.1  Its  rights 
would  be  the  same  as  those  of  any  similar  proprietor,  and  no 
greater,  unless  enlarged  by  legislative  grant. 

§  74.  All  the  powers  of  a  municipality  in  respect  to  wharves 
and  docks  must,  like  all  its  other  powers,  be  derived  from  the 
legislature.2  In  regard  to  private  wharves  lawfully  erected, 
the  municipal  authorities  have  only  such  powers  of  local  regu- 

1  Murphy  v.  City  Council,  11  Ala.  586,  1847.  The  court  say :  "  The  title 
to  the  wharf  is  in  the  city,  and,  such  being  the  fact,  it  had  the  same  right 
as  any  other  proprietor  to  collect  wharfage  from  those  landing  goods  there. 
This  right,  resulting  from  its  proprietary  interest,  is  not  a  franchise,  but  a 
right  of  property.''  lb.  per  Orrnond,  J.,  p.  558.  The  city  of  Boston  has,  un- 
der the  laws  of  Massachusetts,  the  same  rights  as  other  littoral  proprietors, 
and  was  held  not  to  dedicate  a  dock,  which  it  owned,  to  the  public,  by 
merely  abstaining  from  any  control  over  it.  The  court  observe :  "  The 
people  of  Boston,  who  owned  the  land  as  their  common  and  private  prop- 
erty, acted  through  a  corporation  (the  city),  whose  corporate  grants  and 
licenses  are  matters  of  record.  Their  own  use  of  their  own  property  for 
their  own  benefit  cannot  be  called  a  dedication  of  it  to  any  other  public  of 
under  extent.  Whether  it  was  called  "town  dock"  or  "public  dock"  (which 
were  used  as  synonymous  terms),  it  would  furnish  no  ground  to  presume 
that  they  had  parted  with  their  right  to  govern  and  use  it  in  the  manner 
most  beneficial  to  the  people  or  public  of  the  town  or  city."  Boston  v.  Le- 
craw,  17  How.  (IT.  S.)  426,  1854 ;  Commonwealth  v.  Boxbury,  9  Gray,  514, 
519,  and  note.  Bona  fide  purchaser  of  a  wharf  in  the  city  of  Baltimore, 
erected  under  contract  with  city,  and  in  which  the  city  had  certain  rights, 
held  affected,  with  notice  of  those  rights.  Baltimore  v.  White,  2  Gill  (Md.), 
444. 

2  Snyder  v.  Bockport,  6  Ind.  (Porter),  237,  1855;  Bailroad  Company  v. 
Winthrop,  5  La.  An.  36.  While  a  city  may  be  enjoined,  at  the  instance  of 
a  tax-payer,  from  raising  taxes  or  appropriating  money  for  the  unauthor- 
ized construction  of  a  wharf,  it  will  not  be  restrained  from  exercising  a  clear 
power  to  grade  streets,  merely  because,  by  such  grading,  a  wharf  at  the 
river  end  of  a  street  will  incidentally  result.  Snyder  v.  Bockport,  above 
cited.  As  to  right  of  municipal  corporation  to  erect,  or  allow  others  to 
erect,  wharf  at  terminus  of  street,  see  Doe  v.  Jones,  11  Ala.  63.  In  Galveston 
v.  Menard,  23  Texas,  349,  1859,  the  right  of  the  city,  under  a  grant  from  the 
legislature,  to  build  and  control  wharves  in  front  of  the  streets  is 
affirmed.  In  Newport  v.  Taylor,  16  B.  Mon.  699, 1855,  it  was  decided  that 
the  city  might  build  wharves  on  property  dedicated  as  a  "  common,"  along 
a  navigable  river.  See,  also,  Louisville  v.  Bank,  3  B.  Mon.  144 ;  Kennedy  v. 
Covington,  8  Dana,  61. 

•       1<?  .  .  . 


122  MUNICIPAL   CORPORATIONS.  [CH.   VI. 

lation  and  government  as  their  charters  or  constituent  acts,  in 
general  or  special  terms,  confer  upon  them.1  Their  own  right 
to  erect  wharves  may  be  express  or  implied.  The  power,  even 
when  conferred  in  terms,  is,  like  other  powers,  to  be  construed 
somewhat  strictly  when  it  affects  private  rights,  but  not  so 
strictly  as  to  defeat  the  purpose  of  the  grant.2  Thus,  although 
the  corporate  boundaries  may  by  the  charter  be  extended  to 
low  water  mark,  and  the  corporation  has  express  power  "  to 
regulate  the  erection  and  occupation  of  all  wharves  or  levees 
within  the  corporate  limits,"  this  does  not  give  the  corpora- 
tion as  against  the  riparian  proprietor  (whose  right  was  con- 
strued to  extend  to  low  water  mark),  the  power  to  control  the 
river  bank  so  as  to  require  such  proprietor  or  his  lessee  to 
take  out  a  license  for  his  wharf-boat,  fastened  to.  the  shore  of 
his  own  land,  and  used  for  business  purposes.3 

1  Grant  v.  Davenport,  18  Iowa,  179,  1865.  Where  the  charter  of  a  city- 
authorizes  it  "  to  regulate  the  erection  and  repair  of  private  wharves  and 
the  rates  of  wharfage  thereat,"  "the  city,"  says  Wright,  C.  J.,  "may  regu- 
late, but  not  destroy ;  may  exercise  control  as  over  other  private  property 
within  its  limits,  but  not  to  the  extent  of  appropriating  the  use  and  enjoy- 
ment thereof  to  the  public  without  compensation."  lb.  Liability  of  city 
corporation  for  an  injury  to  a  private  wharf,  caused  by  diverting  streams  of 
water  to  a  point  near  the  wharf,  thereby  causing  a  great  deposit  of  sand  and 
earth,  which  lessened  the  depth  of  water  at  the  wharf  and  impaired  its 
value.  Baron  v.  Baltimore,  2  Am.  Jurist,  203,  cited  and  approved  in  Stetson 
v.  Faxon,  19  Pick.  147,  1858,  and  see,  also,  Thayer  v.  Boston,  19  Pick.  510. 

2  As  to  the  extent  of  municipal  power  over  public  and  private  wharves, 
and  the  respective  rights  of  the  riparian  owner  and  municipal  authorities, 
concerning  wharves  and  wharfage :  Grant  v.  Davenport,  18  Iowa,  179,  1865 ; 
Cincinnati  ».  Walls,  1  Ohio  St.  222  ;  Muscatine  v.  Hershey,  18  Iowa,  39 ;  Gal- 
veston v.  Menard,  23  Texas,  348 ;  Baltimore  v.  White,  2  Gill  (Md.),  444, 1845 ; 
Furman  v.  New  York,  5  Sandf.  S.  C.  16 ;  affirmed,  10  N.  Y.  567  ;  Dugan  v. 
Baltimore,  5  Gill  &  Johns.  (Md.)  357,  1833 ;  reversing  S.  C.  3  Bland  Ch.  361 ; 
Wilson  v.  Inloes,  11  Gill  &  Johns.  (Md.)  358 ;  Shepherd  v:  Municipality,  6 
Rob.  (La.)  349;  Columbus  v.  Grey,  2  Bush  (Ky.),  476;  Kennedy  v.  Coving- 
ton, 17  B.  Mon.  567 :  Commissioners  v.  Neil,  3  Yeates  (Pa.),  54  ;  Richardson 
v.  Boston,  24  How.  (TJ.  S.)  188 ;  S.  C.  19  ib.  263,  17  ib.  426 ;  Newport  v.  Taylor, 
16  B.  Mon.  699,  1855;  Commonwealth  v.  Roxbury,  9  Gray,  514,  519,  and 
note  by  Mr.  (since  Judge)  Gray  ;  Trowbridge  v.  Mayor  vright  of  Albany  un- 
der Dongan  charter),  7  Hill  (N.  Y.),  429 ;  S.  C.  5  ib.  71 ;  Hart  v.  Mayor,  9 
Wend.  571 ;  Lansing  v.  Smith,  4  Wend.  4;  Thompson  v.  Mayor,  11  N.  Y.  115; 
Marshall  v.  Guion,  ib.  461 ;  Corporation  v.  Scott,  1  Caines,  543.  Principles  of 
construction,  ante,  Sec.  55,  and  notes. 

3  McLaughlin  v.  Stevens,  18  Ohio,  94,  1849 ;  Blanchard  e.  Porter  (extent 
riparian  right),  11  Ohio,  138, 144 ;  Muscatine  v.  HershJey,  16  Iowa,  39. 


CH.  VI.]  MUNICIPAL   CHARTERS  —  WHARVES.  -     123 

§  75.  So  where  a  riparian  proprietor  had  constructed  a 
wharf  which  extended  to,  but  did  not  encroach  upon,  the  nav- 
igable part  of  the  river,  and  which  was  not  shown  to  be  a  nui- 
sance in  fact,  it  was  held  by  the  Supreme  Court  of  the  United 
States  that  the  city  within  which  the  wharf  was  situated  could 
not,  under  the  charter  power  to  establish  dock  and  wharf  lines 
and  restrain  and  prevent  encroachments  upon  the  river  and 
obstructions  thereto,  pass  an  ordinance  declaring  the  wharf  to 
be  an  obstruction  to  navigation  and  a  nuisance,  and  ordering 
it  to  be  summarily  abated.1 

§  76.  If  the  right  to  impose  wharfage  is  given  to  a  munici- 
pality, but  not  limited,  the  question  of  the  amount  which  the 
municipal  authorities  may  exact  is  confided  to  their  discretion, 
and  is  one  with  which  the  courts  cannot  interfere2,  unless,  per- 
haps, in  a  case  where  the  by-law  imposing  it  is  plainly  unrea- 
sonable. But  the  amount  of  tolls  or  wharfage  may,  of  course, 
be  regulated  by  the  legislature.3 

§  77.  The  interests  of  commerce  imperatively  require  that 
public  wharves  should  be  in  a  safe  condition;  and  if  a  munici- 
pal corporation  is  in  possession  of  such  a  wharf  and  exercises 
control  over  it,  and  receives  tolls  for  its  use,  it  owes  a  duty  to 
the  public  to  keep  it  in  proper  and  secure  condition  for  use, 
and  it  is  liable,  without  statutory  enactment  to  that  effect,  to 

1  Yates  v.  Milwaukee,  10  Wall.  497, 1870. 

2  Municipality  v.  Pease,  2  La.  An.  538,  1847 ;  Muscatine  v.  Hershey,  18 
Iowa,  39,  42, 1864,  per  Wright,  J. 

3  Baltimore  v.  White,  2  Gill  (Md.),  444,  1845  ;  Murphy  v.  City  Council,  11 
Ala.  586, 1847.  Authority  to  a  city  "  to  erect,  repair,  and  regulate  wharves 
and  the  rates  of  wharfage,"  authorizes  it  to  collect  wharfage  upon  goods 
landed  on  the  bank,  the  space  in  front  of  the  city  being  dedicated  to  the  pub- 
lic, although  no  artificial  wharf  was  erected.  Sacramento  v.  Steamer,  4  Cal. 
41.  This  subject  is  discussed  by  Wright,  J.,  in  Muscatine  v.  Hershey,  18 
Iowa,  39,  but  the  point  is  not  decided  by  the  court.  In  Kentucky,  however, 
it  is  held  that  the  owner  of  the  land  must  build  wharves,  or  improve  the 
shore,  or  make  some  preparation  for  the  reception  or  delivery  of  goods,  or 
accommodation  of  vessels,  before  he  is  entitled  to  collect  tolls  or  wharfage. 
Columbus  ».  Grey,  2  Bush  (Ky.),  476.  If  he  permits  the  municipal  authori- 
ties to  so  improve  the  wharves,  he  will  only  be  entitled  to  reasonable  com- 
pensation for  the  use  of  the  river  bank.  lb.  The  word  "  quay "  defined 
by  McLean,  J.,  in  New  Orleans  v.  United  States,  10  Pet.  661,  715. 


124  MUNICIPAL   CORPORATIONS.  [CH.  VI. 

an  action  for  any  special  injuries  to  boats  and  vessels  caused 
by  its  failure  to  discharge  this  duty.  In  such  a  case  it  is  not 
material  whether  the  city  had  adopted  ordinances  for  the  reg- 
ulation of  the  wharf,  or,  having  such,  neglected  to  enforce 
them,  as  in  either  event  the  responsibility  is  the  same.1 

Ferries. 

§  78.  It  is  not  unusual  for  the  legislature  to  make  to  a  muni- 
cipal corporation  a  more  or  less  extensive  grant  respecting  fer- 
ries and  ferry  franchises.  Such  a  grant  is  not,  unless  other- 
wise expressed,  a  compact  which  cannot  be  impaired,  but,  in 
the  nature  of  a  public  law,  subject  to  be  repealed  or  changed, 
as  the  public  interests  may  demand.2  If  the  legislature  has 
conferred,  as  in  some  of  the  ancient  charters  in  England  and 
in  this  country,  upon  a  municipal  corporation,  its  -whole  power, 
to  establish,  and  regulate  ferries  within  the  corporate  limits, 
the  corporation  thus  representing  the  sovereign  power  may 
make  an  exclusive  grant.3  But  such  a  corporation  has  not  an 
exclusive  power  over  the  subject,  unless,  by  express  words  or 
necessary  inference,  it  be  plainly  and  clearly  given  to  it  by  the 
legislature.     Hence,  power  to  a  municipality  to  establish  and 

1  Pittsburg  v.  Grier,  22  Pa.  St.  54, 1853.  "  This  case,"  says  Perky,  C.  J.,  in ' 
Eastman  v.  Meredith,  36  N.  H.  284,  295,  "  is  put  distinctly  upon  the  ground 
that  the  public  duty,  which  was  the  foundation  of  the  action,  arose  out  of 
the  control  which  the  city  exercised  over  the  wharf,  and  the  income  re- 
ceived for  the  use  of  it."  That  the  right  to  collect  wharfage  by  the  city  im- 
poses the  duty  to  keep  in  repair,  and  a  correlative  liability,  has  been  often 
determined.  Shinkle  v.  Covington,  1  Bush  (Ky.),  617,  where  there  was  a 
failure  to  provide  proper  fastenings  for  boats.  People  v.  Albany,  11  Wend. 
539,  543 ;  Buckbee  v.  Brown,  21  Wend.  110 ;  Mersey  Dock  Trustees  v.  Gibbs, 
1  Law  R.  H.  L.  93.  Lessee,  of  city  is  under  like  liability.  Radway  v.  Briggs, 
37  N.  Y.  256,  1867.  In  form,  the  action  in  such  a  case  against  the  city  may 
be  either  case  or  assumpsit.  Pittsburg  v.  Grier,  22  Pa.  St.  54,  1853.  But  it  is 
no  defence  to  an  action  by  a  city  for  wharfage,  that  the  wharf  is  not  well 
built  and  needed  further  improvement  or  repairs.  Prescott  v.  Duquesne, 
48  Pa.  St.  118;  Jefferson ville  v.  Ferry  Company,  27  Ind.  100. 

8  East  Hartford  v.  Hartford  Bridge  Co.  10  How.  (IT.  S.)  511, 1850.  Ante, 
p.  84,  Sec.  40.  As  to  extinguishment  of  ferry  franchise  by  a  subsequent 
legislative  grant  to  build  abridge  at  the  site  of  the  ferry,  and  take  tolls, 
see  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  (U.  S.)  420,  1837.  Con- 
struction of  special  grant,  Hartford  Bridge  Co.  v.  Ferry  Co.  29  Conn.  210. 

»  Costar  v.  Brush,  25  Wend.  628,  1841. 


CH.  VI.]  MUNICIPAL   CHARTERS  —  FERRIES.  125 

regulate  ferries  within  its  limits,  does  not  give  it  an  exclusive 
power,  and  consequently  does  not  authorize  it  to  confer  an  ex- 
clusive privilege  upon  others  to  establish  a  ferry.1 

§  79.  By  its  charter,  a  city  was  empowered  "  to  license, 
continue,  and  regulate,"  as  many  ferries  within  its  limits,  to 
the  opposite  shore  of  a  river  bounding  it,  as  the  public  good 
required,  and  the  common  council  were  further  authorized  "  to 
direct  the  manner  of  issuing  and  registering  the  licenses,  and 
to  prescribe  the  sum  of  money  to  be  paid  therefor  into  the  treas- 
ury of  the  corporation."  Under  this,  an  ordinance  prohibiting 
all  persons  from  ferrying,  without  a  license  from  the  mayor,  and 
authorizing  this  officer  to  grant  licenses  to  any  person  upon 
payment  into  the  treasury  of  the  city  of  the  sum  of  fifty  dollars, 
was  sustained  against  the  objections  that  there  was  no  power 
to  prohibit  ferrying  without  a  license,  and  that  the  license  fee 
was  a  tax.  The  words  of  the  charter — "  To  prescribe  the  sum 
of  money  to  bq  paid  into  the  treasury  of  the  corporation," — 
were  regarded  by  the  court  as  showing  a  clear  intent  to  make 
licenses  a  source  of  revenue  to  the  city  ;  and  the  court  added, 
that  the  amount  charged  as  a  license  fee  did  not  appear  to  be 
unreasonable.2 

§  80.  If  a  municipal  corporation  seized  of  a  ferry,  lease  the 
same,  through  the  agency  of  the  mayor  and  aldermen,  with  a 
covenant  for  quiet  enjoyment,  this  covenant  will  not  restrain 
the  mayor  and  aldermen  from  exercising  the  powers  vested  in 
them  by  statute,  to  license  another  ferry  over  the  same  waters, 
if,  in  their  judgment  (which  cannot  be  reviewed  by  the  courts), 
the  public  necessity  and  convenience  require  it.  On  such  a 
covenant  the  city  may  be  liable  to  the  covenantees ;  but  the 
powers  vested  in  the  city  officers,  as  trustees  for  the  public, 
cannot  be  thus  abrogated.     If,  however,  the  city,  in  its  corpo- 

1  Minturn  v.  Larue,  23  How.  (U.  S.)  435,  1859 ;  Harrison  v.  State,  9  Mo. 
526, 1845 ;  McEwen  v.  Taylor,  4  G.  Greene  (Iowa),  532.    Ante,  p.  103,  note. 

'Chilvers  v.  People,  11  Mich.  43,  1862.  As  to  distinction  between  a  li- 
cense fee  and  a  tax,  see  Ash  v.  People,  11  Mich.  347,  and  the  chapters  on  Or- 
dinances and  Taxation,  post.  Amount  of  license  city  may  exact,  the  state 
law  on  the  subject  being  held  to  affect  the  city,  Reddick  v.  Amelia,  1  Mo. 
5, 1821. 


126  MUNICIPAL   CORPORATIONS.  [CH.    VI. 

rate  capacity,  is  the  legal  owner  of  an  exclusive  franchise,  its 
grantees  or  lessees  would  hold  it,  notwithstanding  any  license 
to  others,  whether  granted  by  the  mayor  and  aldermen  or  any 
other  tribunal.1 

Borrowing  Money. 

§  81.  We  will  hereafter  treat  of  the  implied  power  of  mu- 
nicipal corporations  to  issue  negotiable  securities.  But  this  is 
a  different  question  from  the  power  to  borrow  money.  The 
power  to  borrow  may  be  given  in  express  language,  in  which 
case  the  terms  and  purpose  of  the  grant  will  measure  its  ex- 
tent. But  suppose  the  power  is  not  expressly  conferred,  does 
it  exist  by  implication  ?  It  is  settled,  that  private  corpora- 
tions, organized  for  pecuniary  profit,  have,  unless  specially  re- 
stricted, an  incidental  authority  to  borrow  money  for  their 
legitimate  purposes,  and  to  give  the  usual  obligations  for  its 
re-payment.2  The  question  of  the  implied  authority  of  munici- 
pal corporations  to  borrow  money  has  not,  perhaps,  been  so 
often  or  so  thoroughly  considered  as  to  be  entirely  closed  to 
controversy.  In  view  of  the  legislative  practice  to  confer,  in 
terms,  all  powers  so  important  as  this,  the  dangerous  nature  of 

1  Fay,  Petitioner,  15  Pick.  243,  1834.  The  court  will  not  try  on  certiorari 
the  conflicting  titles  of  parties  to  a  ferry  franchise,  ib.  Ante,  Chap.  V.  Sec. 
01.  Eights  of  municipal  corporations  in  connection  with  ferries  and  ex- 
tent of  legislative  control ;  see  Fanning  v.  Gregoire  et  al.  16  How.  (IT.  S.) 
524,  1853 ;  East  Hartford  ».  Hartford  Bridge  Co.  10  ib.  511 ;  affirming  S.  C. 
16  Conn.  149;  17  Conn.  80,  96 ;  Chilvers  v.  People,  11  Mich.  43;  O'Neill  v. 
Police  Jury,  21  La.  An.  586 ;  Aiken  v.  Railroad  Co.  20  N.  Y.  370,  1859,  re- 
lating to  the  ferry  rights  of  the  city  of  Albany  ;  Benson  v.  Mayor,  &c.  of 
New  York,  10  Barb.  223  ;  Harris  v.  Nesbit,  24  Ala.  398 ;  United  States  v. 
Fanning,  Morris  (Iowa),  348 ;  Conner  v.  New  Albany,  1  Blackf.  (Ind.)  43 ; 
City  v.  Ferry  Co.  27  Ind.  100  ;  Shallcross  v.  Jeffersonville,  26  Ind.  193.  The 
right  of  a  city,  given  by  charter,  to  license  and  tax  ferries,  is  not,  unless  so 
expressed,  exclusive  of  a  like  right  in  the  state  or  county.  Harrison  v. 
State,  9  Mo.  526,  1845.  "  Power  to  regulate  ferries,"  given  to  municipal  cor- 
porations in  general  incorporation  act,  construed,  Duckwall  v.  New  Albany, 
25  Ind.  283.  When  equity  will  annul  lease,  Phillips  v.  Bloomington,  1  G. 
Greene  (Iowa),  498.  Upon  division  of  an  old  town  owning  ferry  franchise, 
the  new  town  owns  no  interest  therein  except  so  far  as  conferred  by  the 
legislature.  Hartford  Bridge  Co. «.  East  Hartford,  16  Conn.  149 ;  post,  Chap. 
VII. 

2  Stratton  v.  Allen,  16  N.  J.  Eq.  229  ;  see,  ante,  p.  67,  Sec.  27,  and  chapter 
on  Contracts,  post. 


CH.  VI.]  MUNICIPAL   CHARTERS BORROWING   MONEY.  127 

this  power  by  reason  of  the  temptation  it  holds  out  to  incur 
needless  debts  and  to  make  extravagant  expenditures,  and  the 
facilities  it  offers  for  frauds,  and  the  settled  and  salutary  doc- 
trine that  such  corporations  have  no  powers  but  such  as  are 
expressly  conferred,  and  those  which  are  necessary  to  effect 
the  objects  of  the  corporation,  and  those  which  are  incidental 
to  the  express  grants,  the  author  would  be  strongly  inclined  to 
deny  the  existence  of  an  implied  power  to  borrow  money.  But 
it  must  be  admitted  that  the  few  express  adjudications  on  the 
subject  favor  the  contrary  opinion. 

§  82.  The  question  arose  in  Ohio,  in  1836,  and  was  fully 
argued  and  considered.  The  town  of  Chillicothe  possessed 
authority  to  purchase  real  estate,  erect  public  buildings,  repair 
streets,  and  the  usual  municipal  powers.  The  right  to  bor- 
row money  was  not  expressly  granted,  and  the  only  question  in 
the  ease  (an  action  upon  the  bonds  of  the  town  given  for  bor- 
rowed money)  was,  whether  it  was  granted  by  implication. 
The  case  was  regarded  as  of  the  first  impression,  no  authori- 
ties in  point  being  produced.  The  court  distinctly  decided, 
that  in  carrying  out  the  express  powers,  or  in  effecting  any 
legitimate  municipal  object,  the  corporation  possessed  the 
incidental  or  implied  right  to  borrow  money.1  And  subse- 
quently the  Supreme  Court  of  "Wisconsin  affirmed  the  implied 
authority  of  a  municipal  corporation,  as  incidental  to  the  exe- 
cution of  the  general  powers  granted  by  its  charter,  and  in 
the  absence  of  special  restriction,  to  borrow  money  and  issue 
its  bonds  therefor,  it  appearing  that  the  proceeds  thereof  went 
into  the  treasury  of  the  city  and  were  expended  by  it.2  "  The 
charter,"  says  the  court,  stating  its  reasons,  "does  confer  the 
power  to  purchase  fire  apparatus,  cemetery  grounds,  etc.,  to 
establish  markets,  and  to  do  many  other  things,  for  the  exe- 
cution of  which  money  would  be  necessary  as  a  means.  It 
would  seem,  therefore,  that  in  the  absence  of  any  restriction, 
the  power  to  borrow  money  would  pass  as  an  incident  to  these 
general  powers,  according  to  the  well-settled  rule  that  corpor- 

1  Bank  v.  Chillicothe,  7  Ohio,  part  II.  p.  31, 1836. 

2  Mills  v.  Gleason,  11  Wis.  470,  1860;  S.  C.  8  Am.  Law  Reg.  692;  State  v. 
Madison,  7  Wis.  688;  Clark  v.  Janesville,  10  Wis.  136. 


128  MUNICIPAL   CORPORATIONS.  [CH.  VI. 

ations  may  resort  to  the  usual  and  convenient  means  of  exe- 
cuting the  powers  granted;  for  certainly  no  means  is  more 
usual  for  the  execution  of  such  objects  than  that  of  borrowing 
money."  In  this  case,  as  in  the  other,  the  question  was  not 
raised  until  the  money  had  been  borrowed  and  the  rights  of 
third  persons  had  attached.1 

1  City  v.  Lamson,  9  Wall.  477,  486,  1869,  where  the  Wisconsin  cases  are 
referred  to  by  Nelson,  J.  Ante,  p.  67,  Sec.  27,  and  notes.  The  right  of 
private  corporations  generally  to  borrow  money,  as  incidental  to  the  ex- 
press powers  granted,  is  extensively  considered  upon  principle  and 
authority  in  the  important  case  of  Curtis  ».  Leavitt,  15  N.  Y.  9,  1857. 
See,  also,  Barry  v.  Merch.  Ex.  Co.  1  Sandf.  Ch.  280;  Beers  v.  Phoenix 
Glass  Co.  14  Barb.  358;  Stratton  v.  Allen,  16  N.  J.  Eq.  229;  Lucas  v. 
Pitney  (power  of  railroad  company),  3  Dutch.  (N.  J.)  221;  Fay  v.  Noble 
(manufacturing  corporation),  12  Cush.  1;  Davis  v.  Prop.  &c.  of  Meet- 
ing House  (religious  corporation),  8  Met.  321.  Perhaps  it  is  difficult  to 
draw  a  distinction  between  private  and  municipal  corporations  in  respect 
to  the  implied  right  to  borrow  money.  But  we  see  much  more  reason  for 
affirming  the  existence  of  an  incidental  power  of  this  kind  with  respect  to 
trading,  banking,  manufacturing,  and  railroad  corporations  than  in  relation 
to  municipal  corporations.  There  is  a  difference  between  contracting  a 
debt  in  the  prosecution  of  a  legitimate  corporate  purpose  and  borrowing 
money  for  that  purpose.  In  the  one  case,  the  application  of  the  credit  is 
secured  to  the  advancement  of  the  authorized  object,  while  money  bor- 
rowed is  liable  to  be  lost,  or  to  be  diverted  to  illegitimate  purposes.  It 
should  be  remembered,  that  the  express  powers  can  be  executed  without 
holding  that  there  is  an  implied  power  to  borrow  money.  The  revenue 
provisions  of  charters  supply  it  with  the  means  designed  to  furnish  it 
with  money.  And  powers  are  not  held  to  exist  merely  because  they  are 
convenient.  As  applicable  to  municipal  corporations,  there  is  great  and 
almost  convincing  force  in  the  argument  of  Selden,  J.,  in  Curtis  •o.  Leavitt, 
supm,  pp.  267,  268.  And  see  Ketchum  v.  City  of  Buffalo,  14  N.  Y.  356,  365, 
1856,  where  the  subject  is  considered  by  the  same  judge,  and  the  power  of 
a  municipal  corporation  to  contract  debts  on  credit,  for  legitimate  purposes, 
and  to  give  a  suitable  acknowledgment  of  the  indebtedness,  is  discrimin- 
ated from  the  power  to  borrow  money.  Whether  there  is  an  incidental 
power  to  borrow  money  to  carry  out  authorized  corporate  purposes,  is  ad- 
mitted to  be  a  question  which  has  "  yet  to  be  judicially  settled."  See,  on 
the  general  subject,  Canal  Bank  v.  Supervisors,  5  Denio,  517,  1848 ;  Barker 
v.  Loomis,  6  Hill,  463, 1844 ;  People  v.  Brennan,  39  Barb.  522, 1863.  In  Com- 
monwealth v.  Pittsburgh,  41  Pa.  St.  278,  Strong,  J.,  says,  that  the  power  to 
execute  and  issue  bonds  is  inseparable  from  the  existence  of  all  corpora- 
tions, public  and  private.  Douglass  v.  Virginia  City,  5  Nevada,  147, 1869. 
In  New  York,  see  Stat.  1853,  1135,  Chap.  603. 

Recent  English  Decisions. — Bond  for  borrowed  money,  given  after  the  Mu- 
nicipal Corporations  Act,  held  valid:    Pallister  v.  Mayor,  &c  9  C.  B..744; 


GH.  VI.]        MUNICIPAL   CHARTERS  —  BORROWING   MONEY.  129 

§  83.  Express  power  to  a  municipal  corporation  "to  bor- 
row money  "  includes  the  power  to  issue  its  negotiable  bonds, 
or  other  usual  securities,  to  the  lender.1  But  it  does  not  in- 
clude the  power  to  issue  notes  to  circulate  as  money,  in  viola- 
tion of  the  statute  law  and  public  policy  of  the  state.3 

§  84.  A  contract  whereby  a  city  agrees  with  an  individual 
that  if  the  latter  will  pay  or  advance  the  amount  of  interest 
due  and  to  become  due  on  certain  bonds  of  the  city  already 
issued,  the  city  will  pay  or  refund  the  amount,  is^  not  a  "  bor- 
rowing of  money"  within  the  terms  or  spirit  of  the  charter 
prohibiting  the  municipal  authorities  from  borrowing  money 
unless  authorized  by  a  prior  vote  of  the  citizens ;  such  a  con- 
tract being  one  simply  for  the  payment  of  a  debt.3  Under 
authority  to  a  city  to  borrow  money,  it  may,  if  there  be  no 
statutory  restriction,  make  the  principal  and  interest  payable 
at  the  place  where  the  money  is  borrowed,  or  where  it  pleases, 
though  beyond  the  limits  of  the  state.4    Among  the  powers 

Payne  v.  Mayor,  &c.  3  Hurl.  &  Nor.  572.  See  Nowell  v.  Mayor,  &c.  9  Exch. 
457 ;  Kendall  v.  King,  17  C.  B.  483.  Note  for  borrowed  money  held  invalid 
under  the  act:  Attorney  General  ».  Lichfield,  13  Sim.  547;  Reg.  i>.  Lich- 
field, 4  Queen's  B.  893. 

1  Commonwealth  «.  Pittsburg,  34  Pa.  St.  496,  511,  1859;  Railroad  Co.  v. 
Evansville,  15  Ind.  395,  412,  1860;  Middleton  v.  Allegheny  Co.  37  Pa.  St. 
241;  Reinboth  v.  Pittsburg,  41  Pa.  St.  278;  Seybert  v.  Pittsburg,  1  Wall.  272; 
Rogers  v.  Burlington,  3  Wall.  654,  666,  per  Clifford,  J. ;  De  Voss  v.  Rich- 
mond, 18  Gratt.  (Va.)  338;  S.  C.  7  Am.  Law  Reg.  (N.  S.)  589;  Galena  v.  Cor- 
with,  48  HI.  423,  1868.  Money  borrowed,  and  note  given  by  officers  of  a 
town,  without  authority,  does  not  bind  the  town  in  case  it  never  receives 
the  benefit  of  it.  Benoit  v.  Conway,  10  Allen,  528 ;  People  v.  Supervisors, 
34  N.  Y.  516. 

2  Thomas  v.  Richmond,  U.  S.  Supreme  Court,  December,  1871,  not  yet  re- 
ported. 

Construction  of  the  constitutional  power  of  the  general  government  to 
"borrow  money."  See  Hepburn  v.  Griswold,  8  Wall.  603,  and  Knox  v.  Lee, 
December  term,  1871,  known  as  the  "legal  tender  cases." 

3  Gelpcke  v.  Dubuque,  1  Wall.  (U.  S.)  221,  1863,  Miller,  J.,  dissenting. 
Where  a  city  can  make  such  a  contract,  with  the  sanction  of  a  prior  vote, 
the  sanction  will,  in  an  action  on  such  a  contract,  be  presumed  until  the 
contrary  is  shown  by  the  city.    lb.  per  Swayne,  J. 

4  Meyer  v.  Muscatine,  1  Wall.  (U.  S.)  384,  1863.  In  this  case,  the  court, 
per  Swayne,  J.,  say  (1  Wall.  391) :  "The  power  of  a  municipal  corporation 
to  make  any  contract  does  not  depend  upon  the  place  of  performance,  but 

17 


130  MUNICIPAL   CORPORATIONS.  [CH.   VI. 

of  a  strictly  municipal  nature  conferred  upon  a  city  was'  the 
power  "to  borrow  money  for  any  object,  in  its  discretion,"  or 
"for  any  public  purpose,"  on  a  two-thirds  vote  of  the  citizens, 
and  this  was  held,  in  connection  with  a  general  statute  of 
the  state  recognizing,  by  implication  (as  construed),  the  valid- 
ity of  city  and  county  bonds  generally,  to  authorize  such  city 
to  issue  bonds  to  aid  in  the  construction  of  a  iailway  or  plank 
road  leading  to,  through,  or  from  the  city.1 

Limitation  on  Power  to  Become  Indebted. 

§  85.  Provisions  are  frequently  made  in  constitutions,  or  in 
charters  or  incorporating  acts,  to  prevent  the  creation  or  in- 
crease of  municipal  indebtedness  beyond  certain  limits,  or  ex- 
cept upon  certain  conditions.  The  j  udicial  construction  of  some 
of  these  provisions  will  be  noticed  in  this  place.  The  constitu- 
tion of  Maryland  contains  a  provision  that  "~Ro  debt  shall  be 
created  by  the  mayor  and  city  council  of  Baltimore"  (except 
for  specified  temporary  purposes),  unless  it  shall  be  first  sanc- 
tioned by  the  legislature  and  approved  by  the  voters  of  the 
city.  The  city  being  the  owner  of  a  large  amount  of  stock  in 
the  Baltimore  and  Ohio  Railroad  Company,  without  previous 
legislative  authority  or  the  approval  of  the  voters,  passed  an 

upon  its  scope  and  object.  A  city  authorized  to  establish  gas-works  and 
water-works,  and  to  gravel  its  streets,  may  buy  water,  coal,  and  gravel  be- 
yond its  limits,  and  agree  to  pay  where  they  are  found,  or  elsewhere.  The 
principal  power,  when  expressed,  draws  to  it,  by  necessary  implication, 
the  means  of  its  execution.  This  is  the  settled  rule  in  the  construction  of 
all  grants  of  authority,  whether  to  governments  or  individuals."  Express 
authority  to  a  city  "to  borrow  money,''  necessarily  implies  the  power  to 
determine  the  time  of  payment  and  to  issue  bonds,,  or  other  evidence  of  in- 
debtedness, to  borrow  within  or  without  the  state,  and  to  agree  to  pay 
where  borrowed.  Railroad  Company  v.  Evansville,  15  Ind.  395,  412,  1860, 
distinguished  as  to  place  of  payment  from  Prettyman  ».  Tazwell  Co.  19  111. 
406,  22  ib.  147,  which  were  regarded  as  turning  upon  peculiar  statutory  pro- 
visions.   See,  further,  chapter  on  Contracts,  post. 

1  Meyer  v.  Muscatine,  1  Wall.  (U.  S.)  384,  1863,  Miller,  J.,  dissenting,  in 
tin  opinion  of  marked  ability,  Mitchell  r.  Burlington,  4  "Wall.  270,  1866; 
Rogers  v.  Burlington,  3  Wall.  654,  1865.  General  power  granted  to  a  city  to 
create  a  debt  will  be  construed  to  means  debts  for  specified,  legitimate,  and 
proper  municipal  purposes,  and  not  for  any  or  all  purposes,  at  the  discretion 
of  the  city  council  or  inhabitants.  Lafayette  v.  Cox,  5  Ind.  (Porter)  38, 
1854.    See,  further,  chapter  on  Contracts,  post. 


CH.  VI.]  MUNICIPAL   CHARTERS LIMITATION.  131 

ordinance  to  provide  for  the  raising  of  one  million  of  dollars, 
by  hypothecating  its  railroad  stock,  and  for  the  investment  of 
the  same  in  the  bonds  of  another  railroad  company  in  process 
of  construction.  The  validity  of  this  ordinance  being  drawn 
in  question,  the  court  considered  it  to  be  plain,  that  the  con- 
stitutional provision  quoted  was  intended  to  prohibit  the  city 
from  aiding  in  the  construction  of  works  of  internal  improve- 
ment without  the  previous  assent  of  the  legislature  and  of  a 
majority  of  the  voters  of  the  city;  and  that  the  ordinance  (not- 
withstanding the  ingenious  use  of  the  phrase  raising  instead  of 
borrowing  money,  and  the  further  provision  that  the  parties 
furnishing  the  money  should  look  for  its  repayment  exclu- 
sively to  the  stock  pledged,  and  that  the  city  should  not  be 
responsible  for  any  deficit)  did  create  a  debt  within  the  mean- 
ing of  the  constitution,  and  was  therefore  void.1 

§  86.  Under  a  charter  prohibiting  the  common  council  of 
a  city  from  "authorizing  any  expenditure,  for  any  purpose," 
in  the  current  political  year,  exceeding  the  amount  of  the  an- 
nual tax  levy,  tbe  council  cannot  authorize  any  expenditure 
to  be  made  within  the  year  exceeding  the  limit;  but  they  are 
not  forbidden  to  authorize,  in  that  year,  an  expenditure  to  be 
made  in  a  subsequent  year,  for  services  to  be  performed  in 
such  subsequent  year.2 

§  87.     A  municipal  charter  provided  that  it  should  not  be 

lawful  for  the  city  council  to  make,  or  authorize  to  be  made, 

"any  contract  for  the  payment  of  money  beyond  the  current 

fiscal  year,"  declaring  every  such  prohibited  contract  "illegal 

1  Baltimore  v.  Gill,  31  Md.  375,  1869.  That  a  debt  may  be  created  by  bor- 
rowing money,  although  there  be  a  provision  exempting  the  borrower  from 
liability  beyond  the  property  pledged,  see  Newell  v.  People,  3  Seld.  9,  87. 

8  Weston  v.  Syracuse,  17  N.  Y.  110,  1858.  See,  also,  Cook  v.  City  of  Buf- 
falo, 1  Clinton's  N.  Y.  Digest,  "Buffalo,"  Sec.  2.  The  charter  of  a  city  pro- 
vided that  "  no  funded  debt  shall  be  contracted."  It  was  decided,  that  a  city 
bond,  issued  on  time,  for  the  purchase  of  market  grounds,  was  not  a  funded 
debt.  Ketchum  v.  Buffalo,  14  N.  Y.  356;  meaning  of  "funded  debt"  and 
"funding"  considered  by  Selden,  J.,  ib.  p.  367,  and  by  Wright,  J.,  p.  378. 
City  may  fund  valid  debt  and  issue  its  bonds  therefor,  without  express 
authority.  Galena  v.  Corwith,  48  111.  423, 1868.  How  fund,  Smith  v.  Morse, 
2  Cal.  524.    Ante,  p.  86,  Sec.  41 ;  p.  80,  Sec.  36. 


132  MUNICIPAL   CORPORATIONS.  [CH.    VI. 

and  void."  In  construing  tins  language  the  court  say:  "By 
this  section  of  the  charter,  the  legislature  have,  in  the  most 
explicit  manner,  prohibited  the  city  council  from  contracting 
any  debt  beyond  the  fiscal  year.  If  the  city  council  had,  at 
the  time  the  contract  was  made,  in  1845,  passed  an  ordinance 
that  the  expense  of  lighting  the  streets  of  the  city  for  that 
year  should  be  paid  in  1848,  by  a  tax  then,  assessed  for  that 
purpose,  it  would  have  come  within  the  letter  of  the  prohi- 
bition. It  is  none  the  less  a  violation  of  its  spirit,  that  the 
council  did  not  pass  the  ordinance  providing  for  its  payment 
until  1848."  » 

§  88.  If  a  municipal  corporation  has  the  means  in  its  treas- 
ury to  meet  its  indebtedness,  the  issue  of  warrants  to  an 
amount  larger  than  five  per  cent- of  its  taxable  property  is  not 
a  violation  of  the  pection  of  the  state  constitution  which  pro- 
vides that  "no  municipal  corporation  shall  be  allowed  to  be- 
come indebted,  in  any  manner  or  for  any  purpose,  to  an 
amount  exceeding  five  per  cent  of  the  taxable  property  within 
the  corporation."  In  such  case  it  would  not  become  indebted 
within  the  meaning  of  the  constitutional  clause.2     An  act.  of 

1  Per  Caldwell,  J.,  Jonas  v.  Cincinnati,  18  Ohio,  318,  322,  1849.  Construc- 
tion of  similar  provision  in  other  charters :  Goodrich  v.  Detroit,  12  Mich. 
279;  Philadelphia®.  Flanigen,  47  Pa.  St.  21;  Johnson  v.  Philadelphia,  ib. 
382;  Wallace  v.  San  Jose,  29  Cal.  180;  Bladen  v.  Philadelphia,  60  Pa.  St. 
464,  construing  an  act  applying  to  the  city  to  the  effect  that  no  debt  shall 
be  binding  unless  authorized  by  law  or  ordinance,  and  a  sufficient  appro- 
priation therefor  be  made. 

2  Dively  v.  Cedar  Falls,  27  Iowa,  227, 1869.  A  contract  by  the  corporation 
to  pay  for  work  when  it  shall  be  performed,  in  the  future,  does  not  consti- 
tute an  indebtedness,  within  the  meaning  of  this  provision  of  the  constitu- 
tion, until  the  performance  of  the  work.  Ib.  But  qusere.  See  Davenport, 
&c.  Gas  Co.  v.  Davenport,  13  Iowa,  229.  A  similar  provision  exists  in  the 
constitution  of  Illinois  and  of  some  other  states.  The  meaning  and  effect  of 
the  Iowa  constitution,  quoted  above,  were  much  discussed  before  the 
Supreme  Court  of  Iowa,  in  a  very  recent  case,  in  which  the  question  was, 
Is  a  city  corporation  liable  to  a  bona  fide  holder,  upon  its  negotiable  bonds 
issued  for  value,  when  at  the  time  of  such  issue  the  city  was  indebted  to 
the  full  extent  of  the  constitutional  limit  ?  The  cause  was  settled  before 
being  decided,  and  no  opinions  were  filed ;  but  the  judges  differed  in  their 
judgment.  In  the  Western  Jurist  (Vol.  VI.  p.  1,  January,  1872),  will  be 
found  two  able  and  interesting  articles  upon  the  question  above  stated,  con- 
taining the  arguments  upon  both  sides  of  it  — the  one  being  prepared,  aB  it 


OH.  VI.J  MUNICIPAL   CHARTERS  —  LIMITATION.  133 

the  legislature  prohibiting  counties  and  cities  from  thereafter 
"  contracting  any  debt  or  pecuniary  liability,  without  fully 
providing,  in  the  ordinance  creating  the  debt,  the  means  of 
paying  the  principal  and  interest  of  the  debt  so  contracted," 
does  not  extend  to  ordinary  street  work,  which  forms  part  of 
the  current  expenses  of  the  corporation,  and  which  may  be 
paid  out  of  its  current  revenues.1 

§  89.  A  restrictive  provision  in  a  city  charter,  that  the 
"  council  shall  not  create,  or  permit  to  accrue,  any  debts  or  lia- 
bilities which  shall  exceed"  a  specified  sum,  unless  a  certain 
course  be  pursued  by  the  council  and  approved  by  a  vote  of 
the  people,  has  been  considered  to  have  no  relation  to  liabili- 
ties arising  ex  delicto,  or  to  those  which  the  law  may  cast  upon  the 
corporation,  and  to  apply,  at  most,  only  to  contracts  or  liabili- 
ties voluntarily  created.  The  court,  indeed,  regarded  the  pro- 
vision as  directory  simply,  and  not  as  limitation  on  the  power 
of  the  council  to  create  debts.2 

§  90.  Constitutional  limitations  on  state  indebtedness  apply 
to  the  state  alone,  and  not  to  her  political  and  municipal  sub- 
is  understood,  by  Mr.  Justice  Beck,  and  the  other  by  Mr.  Justice  Cole,  of  the 
Supreme  Court  of  Iowa.  The  proposition  upon  which  they  differ  is 
whether  the  power  given  to  a  city  to  issue  its  bonds,  absolutely  ceases,  as  to 
innocent  holders,  the  moment  the  constitutional  limit  is  reached,  the  same 
as  if  it  had  never  been  conferred.  In  view  of  the  language  shall  not  "be 
allowed;''  the  course  of  decision  in  the  United  States  Supreme  Court,  else- 
where noticed,  protecting  the  holders  of  this  class  of  securities ;  and  the 
impracticability,  and  even  impossibility,  of  purchasers  ever  to  ascertain, 
at  a  given  moment,  the  amount  of  indobtedness  of  a  corporation,  the  author, 
while  appreciating  the  difficulties  of  the  question,  is  inclined  to  think  that 
if  the  power  to  issue  negotiable  securities  be  given,  and  the  inhabitants 
stand  by  and  allow  such  bonds  to  be  issued,  for  value  received  by  the  cor- 
poration, and  sold,  that  it  should  be  held  liable  thereon.  If  the  bonds  are 
void,  and  the  city  has  received  value,  it  would  be  liable  to  pay  back  what 
it  had  received  from  innocent  persons,  or  else  the  provision  of  the  consti- 
tution would  operate  to  ensnare  and  defraud  those  who  deal  with  it ;  and, 
if  thus  liable,  the  constitutional  limit  may  be  exceeded  in  this  way,  as  well 
as  by  sustaining  the  right  to  recover  on  the  bonds. 

As  to  constitutional  provision  requiring  the  legislature  to  restrict  the  power 
of  municipalities  to  levy  taxes,  borrow  money,  &c.  see,  ante,  Chap.  III.  p. 
67,  Sec.  27. 

1  Reynolds  v.  Shreveport,  13  La.  An.  326, 1858. 

2  McCraeken  v.  San  Francisco,  16  Cal.  591, 1860. 


134  MUNICIPAL   CORPORATIONS.  [CH.    VI; 

divisions.1  A  legislative  provision  prohibiting  the  city  authori- 
ties from  incurring  an  indebtedness  beyond  a  designated 
amount,  does  not  apply  to  the  legislature  of  the  state ;  and  the 
latter  may,  of  course,  by  a  subsequent  act,  authorize  an  in- 
crease of  the  amount.2 

Rewards  for  Offenders. 

§  91.  The  governing  body  of  a  municipal  corporation 
(which  has  power  to  protect  the  property  and  promote  the 
welfare  of  its  inhabitants),  may  offer  a  reward  for  the  detection 
of  offenders  against  the  general  safety  of  its  people,  as,  for 
example,  those  guilty  of  the  crime  of  arson  within  the  corpor- 
ate limits.3  If  made  by  the  mayor,  it  may  be  ratified  by  the 
city  council  subsequently,  and  is  binding  upon  the  city,  though 
not  so  ratified  until  after  the  performance  of  the  service  for 
which  the  reward  is  claimed.4  A  promise  to  reward  an  officer 
for  doing  that  which,  without  such  reward,  it  was  his  duty  to 

1  Pattison  v.  Supervisors,  13  Cal.  175,  1869 ;  Cass  v.  Dillon,  2  Ohio  St.  607, 
1853 ;  Slack  v.  Railroad  Company,  13  B.  Mon.  16 ;  Clark  v.  Janesville,  10 
Wis.  136;  Prettyman  v.  Supervisors,  19  111.  406.  See  People  v.  Supervisors, 
16  Mich.  254,  and  Mr.  Justice  Lowe's  individual  opinion  —  not  the  court's  — 
in  State  v.  County  of  Wapello,  13  Iowa,  388,  418-422 ;  Dubuque  County  v. 
Railroad  Company,  4  G.  Greene,  1 ;  Dean  v.  Madison,  7  Wis.  688. 

2  Amey  v.  Allegheny  City,  24  How.  (U.  S.)  364,  1860.  Construction  of 
particular1  limitation:  lb.  See,  on  the  general  subject;  Wallace  v.  Mayor, 
29  Cal.  180;  Wyncoop  v.  Society,  10  Iowa,  185;  Rice  o.  Keokuk,  15  Iowa, 
579 ;  Gibbon  v.  Railroad  Company,  36  Ala.  410 ;  Foote  v.  Salem,  14  Allen, 
487. 

9  York  v.  Forscht,  23  Pa.  St.  391,  1854 ;  Crawshaw  o.  Roxbury,  7  Gray, 
374,  1856.  Such  an  offer  is  not  void  for  ambiguity,  and  entitles  a  person  to 
the  reward  who  gives  information  to  the  police  officers  of  the  city  upon 
which  the  incendiary  is  arrested,  he  being  afterwards  convicted.  The 
power  of  towns  in  Maine  to  offer  rewards  denied :  Gale  v.  South  Berwick, 
51  Maine,  174.    See  Lee  v.  Flemingsburg,  7  Dana,  59. 

4  Crawshaw  v.  Roxbury,  supra.  Under  a  statute  authorizing  the  mayor 
and  city  council  of  any  city,  or  the  selectmen  of  any  town,  to  offer  and  pay 
from  the  treasury  of  such  city  or  town  a  suitable  reward,  not  exceeding 
$300,  for  apprehending  and  securing  a  person  charged  with  a  capital  or 
other  high  crime,  any  city  or  town  may  be  bound  by  an  offer  of  a  reward 
in  such  cases ;  and  any  person  who  performs  the  service,  relying  upon  such 
offer,  may,  in  action  of  assumpsit,  recover  the  amount  offered  of  such  city 
or  town.  Janvrin  v.  Exeter,  48  N.  H.  Requisites  of  declaration  where  re- 
ward is  offered  by  a  town,  see  Codding  v.  Mansfield,  7  Gray,  272. 


CH.  VI.]        MUNICIPAL  CHARTERS  —  PUBLIC   BUILDINGS.  135 

do,  is  void.  Such  a  promise  is,  on  general  principles,  without 
consideration,  if,  indeed,  it  be  not  illegal.1  Therefore,  a  watch- 
man of  a  city,  who,  while  in  the  discharge  of  his  duty  as  such, 
discovers  a  person  in  the  act  of  committing  a  crime,  cannot 
recover  from  the  city  a  reward  offered  by  it.2 

Public  Buildings. 

§  92.  Power  to  the  officers  or  to  one  of  the  departments  of 
a  municipal  corporation,  to  provide  for  repairs  to  public  build- 
ings, does  not  give  authority  to  erect  a  new  building,  and  cer- 
tainly not  a  large  and  expensive  edifice.3  But  power  to  a  mu- 
nicipal corporation  to  rebuild  or  repair  carries  with  it  the  right 
to  determine  plan  and  mode.4 

Police  Powers  and  Regulations. 

§  93.  Many  of  the  powers  most  generally  exercised  by  mu- 
nicipalities are  derived  from  what  is  known  as  the  police  power 
of  the  state,  and  are  delegated  to  them  to  be  exercised  for  the 
public  good.  Of  this  nature  is  the  authority  to  suppress  nui- 
sances, preserve  health,  prevent  fires,  to  regulate  the  use  and 
storing  of  dangerous  articles,  to  establish  and  control  markets, 
and  the  like.     Thes  i  and  other  similar  topics  will  be  consid- 

1  Stotesbury  v.  Smith,  2  Burr.  924 ;  3  Kent  Com.  185 ;  Harris  v.  "Watson, 
Peake,  72 ;  Stilk  v.  Myrick,  2  Campb.  317 ;  Bridge  v.  Cage,  Cro.  Jac.  103.  See 
chapter  on  Corporate  Officers,  post. 

2  Pool  v.  Boston,  5  Cush.  219, 1849 ;  Gilmore  v.  Lewis,  12  Ohio,  281 ;  Means 
v.  Hendershott,  24  Iowa,  78  ;  Chap.  IX.  post. 

*  Peterson  v.  Mayor,  &c.  17  N.  Y.  449,  455,  per  Denio,  J.  Contract  between 
city  and  county  in  respect  to  public  buildings :  Bergen  v.  Clarkson,  1  Halst. 
(N.  J.)  352,  1796 ;  De  Witt  v.  San  Francisco,  2  Cal.  289,  1852. 

*  Ely  v.  Rochester,  26  Barb.  133,  1837.  As  to  power  to  build  town  house. 
French  v.  Quincy,  3  Allen,  9.  Incidental  power  to  provide  suitable  accom- 
modations for  the  transaction  of  the  business  of  the  corporation.  People  v. 
Harris,  4  Cal.  9  ;  see  Vanover  v.  Davis,  27  Geo.  354 ;  chapter  on  Corporate 
Property,  post.  Council  have  power  to  fit  up  and  furnish  the  room  in 
which  they  meet,  and  the  court  refused  to  enjoin  them  from  furnishing  the 
council  chamber  with  portraits  of  the  governors  of  the  state.  Reynolds  v. 
Mayor  of  Albany,  8  Barb.  597  ;  People  v.  Harris,  4  Cal.  9 ;  but  see  Hodges  v. 
Buffalo,  2  Denio,  110;  Stetson  o.  Kempton,  13  Mass.  272,  1816,  per  Parker, 
C.  J.  Proper  uses  of  public  buildings  :  Scofield  v.  School  District,  27  Conn. 
499 ;  French  v.  Quincy,  3  Allen,  9. 


136  MUNICIPAL   CORPORATIONS.  [CH.  VI. 

ered  in  appropriate  places.  But  it  may  here  be  observed,  that 
every  citizen  holds  his  property  subject  to  the  proper  exercise 
of  this  power,  either  by  the  state  legislature  directly,  or  by 
public  corporations  to  which  the  legislature  may  delegate  it. 
Laws  and  ordinances  relating  to  the  comfort,  health,  conveni- 
ence, good  order,  and  general  welfare  of  the  inhabitants,  are 
comprehensively  styled,  "  Police  Laws  or  Regulations."  And 
it  is  well  settled  that  laws  and  regulations  of  this  character, 
though  they  may  disturb  the  enjoyment  of  individual  rights, 
are  not  unconstitutional,  though  no  provision  is  made  for  com- 
pensation for  such  disturbances.  They  do  not  appropriate 
private  property  for  public  use,  but  simply  regulate  its  use  and 
enjoyment  by  the  owner.  If  he  suffers  injury,  it  is  either 
damnum  absque  injuria,  or,  in  the  theory  of  the  law,  he  is  com- 
pensated for  it  by  sharing  in  the  general  benefits  which  the 
regulations  are  intended  and  calculated  to  secure.  The  citi- 
zen owns  his  property  absolutely,  it  is  true  ;  it  cannot  be  taken 
from  him  for  any  private  use  whatever,  without  his  consent, 
nor  for  any  public  use  without  compensation  ;  still  he  owns  it, 
subject  to  this  restriction,  namely:  that  it  must  be  so  used  as 
not  to  injure  others,  and  that  the  sovereign  authority  may,  by 
police  regulations,  so  direct  the  use  of  it  that  it  shall  not  prove 
pernicious  to  his  neighbors  or  the  citizens  generally.  These 
regulations  rest  upon  the  maxim,  salus  populi  suprema  est  lex. 
This  power,  to  restrain  a  private  injurious  use  of  property,  is 
very  different  from  the  right  of  eminent  domain.  It  is  not  a 
taking  of  private  property  for  public  use,  but  a  salutary  res- 
traint on  a  noxious  use  by  the  owner,  contrary  to  the  maxim, 
sic  utere  tuo  ut  alienum  non  Icedas} 

1  Baker  v.  Boston,  12  Pick.  184,  1831  (as  to  nuisances) ;  Wadleigh  v.  Gill- 
man,  12  Maine,  403  ( as  to  wooden  buildings ) ;  Vanderbilt  v.  Adams,  7 
Cowen,  349  (as  to  harbor  regulations,  where  the  general  principle  upon 
which  police  laws  rest,  is  very  satisfactorily  discussed  by  Woodworth,  J.) ; 
Commonwealth  v.  Alger,  7  Cush.  53,  84  (valuable  opinion  by  Shaw,  C.  J.) ; 
Coates  v.  Mayor,  &c.  of  New  York,  7  Cowen,  585  (as  to  ordinance  prohibit- 
ing the  interment  of  the  dead  within  the  city) ;  Gozsler  v.  Georgetown,  6 
Wheat.  181  (as  to  power  to  grade).  Speaking  of  turnpike  acts,  paving  acts, 
&c.  Lord  Kenyon,  in  the  case  of  the  Governor,  &c.  v.  Meredith,  4  Term 
Rep.  790,  796,  says :  "  Some  individuals  suffer  an  inconvenience  under  all 
these  acts  of  parliament ;  but  the  interests  of  individuals  must  give  way  to 
the  accommodation  of  the  public."  And  per  BvMer,  J.,  in  same  case :  "There 


CH.  VI.]      MUNICIPAL   CHARTERS  —  PREVENTION  OF  FIRES.  137 

Prevention  of  Fires. 

§  94.  The  prevention  of  damage  by  fire  is  usually  an  object 
within  the  scope  of  municipal  authority,  either  by  express 
grant  or  by  the  power,  in  a  chartered  town  or  city,  to  make 
police  regulations  or  needful  by-laws.  And  where  such  is  the 
case,  the  town  or  municipal  body  is  authorized  to  appropriate 
money  for  the  purchase  of  fire-engines,  or  for  the  repair  there- 
of, if  used  for  the  purpose  of  extinguishing  fires  therein  ;  and 
this,  whether  they  belong  to  the  corporation  or  were  purchased 
by  private  subscription.1  And  money  may  also  be  appropri- 
ated for  the  benefit  of  engine  and  hook  and  ladder  companies 
therein.2 

Quarantine  and  Health. 

§  95.  The  preservation  of  the  public  health  and  safety  is 
often  made  a  matter  of  municipal  duty,  and  it  is  competent  for 
the  legislature  to  delegate  to  municipalities  the  power  to  regu- 
late, restrain,  and  even  suppress,  particular  branches  of  busi- 

are  many  cases  in  which  individuals  sustain  an  injury,  for  which  the  law 
gives  no  action ;  for  instance,  pulling  down  houses,  or  raising  bulwarks,  for 
the  preservation  and  defence  of  the  kingdom-  against  the  king's  enemies.'' 
But  "  the  law  will  not  allow  the  right  of  property  to  be  invaded,  under  the 
guise  of  a  police  regulation  for  the  preservation  of  health,  when  it  is  mani- 
fest that  such  is  not  the  object  and  purpose  of  the  regulation."  Per  Wilde, 
J.,  in  Austin  v.  Murray,  16  Pick.  126 ;  Greene  v.  Savannah,  6  Geo.  1,  1849 ; 
People  v.  Hawley,  3  Mich,  330  ;  Ames  v.  County,  11  Mich.  139.  The  extent  of 
the  police  power  will  be  further  discussed  in  the  chapter  on  Ordinances,  post. 
See,  also,  Cooley  Const.  Lim.  572-594.  How  far  and  when,  cities,  in  exe- 
cuting police  duties,  are  agents  of  the  state,  and  not  of  the  municipality. 
See  Buttrick  v.  Lowell,  1  Allen,  172 ;  Mitchell  v.  Rockland,  51  Maine,  118, 
122 ;  State  ex  rel.  &c.  v.  St.  Louis  County  Court,  34  Mo.  356 ;  White  v.  Kent, 
11  Ohio  St.  550  ;  Thomas  v.  Ashland,  12  ib.  127  ;  City  Council  ».  Payne,  2 
Nott  &  McCord  (South  Car.),  475  ;  People  v.  Hurlburt,  Supreme  Court  Mich. 
1871,  not  yet  reported.    Ante,  p.  78,  Sec.  34. 

1  Allen  v.  Taunton,  19  Pick.  485,  1837 ;  Huneman  v.  Fire  District,  37  Vt. 
40 ;  Robinson  v.  St.  Louis,  28  Mo.  488  (repair  of  engine  house) ;  Wadleigh  v. 
Gillman,  12  Maine,  403  ;  Yanderbilt  v.  Adams,  7  Cowen,  349,  352. 

2  Van  Sicklen  v.  Burlington,  27  "Vt.  (1  Wms.)  70,  1854.  Approving,  Allen 
v.  Taunton,  supra.  See  post,  chapter  on  Ordinances.  Power  of  council  over 
fire  companies,  and  to  appoint  officers  therefor.  See  Miller  v.  Savannah 
Fire  Co.  26  Geo.  678. 

18 


138  MUNICIPAL   CORPORATIONS.  [CH.  VI. 

ness,  if  deemed  necessary,  for  the  public  good.1  The  subject 
will  be  considered  more  in  detail  in  the  chapter  on  Ordinances. 
The  general  nature  and  scope  of  the  authority  as  it  is  not  un- 
frequently  bestowed,  are  well  illustrated  by  a  case  in  Mary- 
land. By  its  charter  the  city  of  Baltimore  was  vested  with 
"  full  power  and  authority  to  enact  all  ordinances  necessary  to 
preserve  the  health  of  the  city,  prevent  and  remove  nuisances, 
and  to  prevent  the  introduction  of  contagious  diseases  within 
the  city  and  within  three  miles  of  the  same."  Commenting 
on  this  provision  of  the  charter,  the  Court  of  Appeals  say : 
"  The  transfer  of  this  salutary  and  essential  power  is  given  in 
terms  as  explicit  and  comprehensive  as  could  have  been  used 
for  such  a  purpose.  To  accomplish,  within  the  specified  terri- 
torial limits,  the  objects  enumerated,  the  corporate  authorities 
were  clothed  with  all  the  legislative  powers  which  the  gen- 
eral assembly  could  have  exercised.  Of  the  degree  of  necessity 
for  such  municipal  legislation,  the  Mayor  and  City  Council 
of  Baltimore  were  the  exclusive  judges.  To  their  sound  discre- 
tion is  committed  the  selection  of  the  means  and  manner 
(contributory  to  the  end)  of  exercising  the  powers  which  they 
might  deem  requisite  to  the  accomplishment  of  the  objects  of 
which  they  were  made  the  guardians.  '  To  prevent  the  intro- 
duction of  contagious  diseases  within  the  city,  and  within  three 
miles  of  the  same,'  they  might  impose  heavy  penalties  on  the 
captain,  owner,  or  consignee  of  any  ship  or  other  vessel  enter- 
ing the  port  of  Baltimore,  on  board  of  which  small-pox  or 
other  contagious  diseases  might  prevail,  or  they  might  seek 
the  accomplishment  of  their  object  by  causing  the  vessel  and 
all  persons  to  be  taken  possession  of  and  controlled  until  their 
purification  and  disinfection  were  effected,  and  impose  on  the 
captain,  owner,  or  consignee,  the  payment  or  reimbursement 
of  all  the  expenses  incurred  by  such  proceedings ;  or  they 
might  adopt,  at  the  same  time,  both  suggested  remedies,  if  for 
the  successful  and  faithful  execution  of  their  powers  they 
deemed  it  necessary  to  do  so."  2 

1  Shrader,  Ex  parte,  33  Cal.  279,  1867 ;  Asbrook  v.  Commonwealth,  1  Bush 
(Ky.),  139,  1866 ;  Tucker  v.  Virginia  City,  4  Nev.  20. 

2  Harrison  v.  Baltimore,  1  Gill  (Md.),  264,  1843.     Ante.  p.  106,  Sec.  58. 


CH.  VI.]    MUNICIPAL  CHARTERS QUARANTINE  AND  HEALTH.         139 

§  96.  And  it  was  held,  that,  under  this  authority,  it  was 
competent  for  the  city  to  pass  an  ordinance  providing  for  the 
appointment  of  a  "health  officer,"  prescribing  his  duties  and 
powers;  and  that  the  city  might  recover  from  the  consignee 
of  a  vessel,  and  was  not  confined  to  the  charterer,  the  ex- 
penses incurred  by  it  in  disinfecting  and  purifying  the  vessel, 
persons,  and  baggage  on  board  of  her  at  the  time  of  her  ar- 
rival, from  the  infection  of  the  small  pox.  Respecting  the  ex- 
tent of  liability,  the  court  decided,  that  the  defendant  was  not 
entitled  to  an  instruction  that  the  recovery  must  be  limited  to 
the  amount  of  expenses  absolutely  necessary  to  preserve  the 
health  of  the  city,  or  to  prevent  the  introduction  of  the  small 
pox.  On  tbis  point  the  court  expressed  its  judgment  to.be 
that,  "if  the  health  officer"  (on  whom  the  duty  of  disinfecting 
the  vessel  was  imposed  by  ordinance),  in  causing  expenses, 
"  acted  bona  fide,  within  tbe  limits  of  a  sound  discretion,  and 
with  reasonable  skill  and  judgment,  in  the  discharge  of  his 
official  duties,  the  reasonable  expenses  thus  incurred  must  be 
paid."  Concerning  the  power  of  the  corporation  over  the 
persons  on  board  of  an  infected  vessel,  the  court  was  of 
opinion,  that  it  was  competent  for  the  health  officer  to  be 
authorized,  by  ordinance,  to  send  persons  laboring  under  in- 
fectious disease  to  the  hospital,  and  also  those  on  board  of  the 
vessel  liable  to  be  affected  by  the  disease,  if,  in  his  opinion, 
such  a  course  be  necessary  to  prevent  the  spread  of  disease ; 
and  the  owner,  master,  or  consignee  may  be  made  liable  for 
expenses  thus  incurred,  if  the  health  officer  acts  with  reason- 
able skill  and  judgment,  and  exercises  a  sound  and  honest 
discretion.1 

§  97.  A  city  having  power  to  pass  ordinances  respecting 
the  police  of  the  place,  and  to  preserve  health,  is  authorized,  as 
a  sanitary  and  police  regulation,  to  contract  to  procure  a 
supply  of  water,  by  boring,  an  artesian  well,  or  otherwise,  on 
the  public  square,  and  is  the  judge  of  the  mode  best  adapted 
to  accomplish  the  object.2 

1  Harrison  v.  Baltimore,  1  Gill  (Md.),  264.  1843. 

2  Livingston  v.  Pippin,  31  Ala.  542,  1858.  As  to  water-works :  Rome  v. 
Cabot,  28  Ga.  50;  Hale  v.  Houghton,  8  Mich.  458:  A  municipal  corporation 
owning  lands  on  a  water  course,  distant  from  the  city,  to  supply  its  inhab- 


140  MUNICIPAL   CORPORATIONS.  [CH.    VI. 

Indemnifying    Officers. 

§  98.  Where  a  municipal  corporation  has  no  interest  in 
the  event  of  a  suit,  or  in  the  question  involved  in  the  case, 
and  where  the  judgment  therein  can  in  no  way  affect  the  cor- 
porate rights  or  corporate  property,  it  cannot  assume  the  de- 
fence of  the  suit,  or  appropriate  its  money  to  pay  the  judgment 
therein;  and  warrants  or  orders  based  upon  such  a  consider- 
ation are  void.1  But  a  municipal  corporation  has  power  to 
indemnify  its  officers  against  liability  which  they  may  incur 
in  the  bona  fide  discharge  of  their  duties,  although  the  result 
may  show  that  the  officers  have  exceeded  their  legal  author- 
ity.2 Thus,  it  may  vote  to  defend  suits  brought  against  its 
officers  for  acts  done  in  good  faith  in  the  exercise  of  their  of- 
fice.3 So,  if  a  public  corporation  is  charged  with  the  duty  of 
repairing  highways,  and  is  made  liable  for  defects  therein,  it 
has  the  incidental  power  to  indemnify  an  officer  who  'digs  a 
ditch  for  the  purpose  of  raising  a  legal  question  as  to  the 
bounds  of  the  highway.4 

§  99.  So,  a  vote  by  a  town  to  refund  money  paid  by  assess- 
ors on  an  illegal  assessment  of  a  town  tax  made  by  them,  is  an 
express  promise,  founded  upon  a  meritorious  and  legal  con- 

itants  with  water,  has  no  right  (unless  acquired  by  purchase  or  by  the  ex- 
ercise of  the  right  of  eminent  domain)  to  divert  water  to  the  injury  of  other 
riparian  proprietors.    Stein  v.  Burden,  24  Ala.  130, 1854;  ante,  p.  42. 

1  Halstead  v.  Mayor,  &c.  of  K  Y.  3  Comst.  430,  1850,  affirming  S.  C.  5 
Barb.  218,  and  deciding  that  corporate  funds  cannot  be  appropriated  to  pay 
penalties  personally  incurred  by  officers  for  refusing  to  discharge  their  of- 
ficial duties;  refer  to,  in  explanation,  Morris  v.  The  People,  3  Denio,  381. 
And  see,  also,  People  v.  Lawrence,  6  Hill,  244,  holding  that  the  supervisors 
of  a  county  had  no  risht  to  appropriate  money  to  defray  the  costs  of  a  jus- 
tice of  the  peace  who  had  been  prosecuted  for  official  misconduct  and 
acquitted;  recognized  in  Bank  v.  Supervisors,  5  Denio,  517,  521.  Same 
principle,  Merrill  v.  Plainfield,  45  N.  H.  126. 

2  Pike  v.  Middleton  (indemnifying  tax  collector),  12  N.  H.  278,  1841 ;  Ful- 
ler v.  Groton,  14  Gray,  340;  Briggs  v.  Whipple,  6  Vt.  95,  1834;  Bancroft  v. 
Lynnfield,  18  Pick.  566,  1836;  Nelson  v.  Milford,  7  Pick.  18,  26,  1828;  Bab- 
bitt v.  Savoy,  3  Cush.  530,  1849 ;  Hasdell  v.  Hancock,  3  Gray,  526,  1853.  In 
Page  v.  Frankford,  9  Greenl.  115,  this  was  left  an  open  question. 

3  lb.    Baker  v.  Windham,  13  Maine  (1  Shep.),  74,  1836.  - 
*  Bancroft  v.  Lynnfield,  supra. 


CH.  VI.]  MUNICIPAL   CHARTERS' ENTERTAINMENTS.  141 

Bideration,  and  is  irrevocably  binding  upon  the  town.  And 
this,  although,  without  such  vote,  the  town  could  not  have 
been  compelled  to  refund  or  indemnify  the  assessors.  But 
such  a  vote,  by  a  town,  would  be  without  consideration  in  re- 
spect to  state  and  county  taxes.1  So,  if  the  town  is  not  con- 
cerned, having  nothing  to  lose  or  gain  in  the  result  of  the 
litigation,  a  vote  to  indemnify  an  officer  would  be  in  excess  of 
its  power,  and  void;2  but  it  would  be  otherwise  if  the  suit 
against  the  officer  was  in  respect  to  matters  in  which  the  cor- 
poration was  interested.3 

Furnishing  Entertainments. 

§  100.  Without  express  power,  a  public'corporation  cannot 
make  a  contract  to  provide  for  celebrating  the  Fourth  of  July,  or 
to  provide  an  entertainment  for  its  citizens  or  guests.  Such 
contracts  are  void,  and  although  the  plaintiff  complies  there- 
with on  his  part,  he  cannot  recover  of  the  corporation.4 

1  Nelson  v.  Milford,  7  Pick.  18,  1828.  A  separate  action,  on  such  a  vote, 
lies  against  the  town  in  favor  of  each  assessor  for  his  share,  which  does  not 
include,  however,  his  own  tax,  paid  by  him  voluntarily.    lb. 

2  Vincent  v.  Nantucket,  12  Cush.  105,  1853.  "A  promise  to  indemnify  a 
tax  collector  if  he  would  collect,  by  pretence  of  his  official  authority,  a  tax 
which  he  knew  was  illegal,  would  be  an  agreement  to  violate  the  law,  and 
could  not  be  enforced."  Pike  v.  Middleton,  12  N.  H.  281,  per  Gilchrist,  J. 
Selectmen,  under  their  authority  "to  order  and  manage  all  of  the  pru- 
dential affairs  of  the  town,"  may  bind  the  town  thus  to  indemnify  its  offi- 
cers.   12  N.  H.  281,  supra;  ante,  p.  39,  Sec.  13,  and  notes. 

3  Briggs  v.  Whipple,  6  Vt.  95,  1834. 

*  Hodges  v.  Buffalo,  2  Denio  (N.  Y.)  110, 1846.  Same  principle :  Cornell  v. 
Guilford,  1  Denio,  510;  Hood  v.  Lynn,  1  Allen  (Mass.),  103,  1861;  Gerry  v. 
Stoneman,  ib.  319.  Nor  to  celebrate  surrender  of  Cornwallis:  Tash  v. 
Adams,  10  Cush.  252,  1852.  Nor  can  towns  in  Massachusetts  vote  money 
for  the  purchase  of  uniforms  for  an  artillery  company:  Claflin  v.  Hopkin- 
ton,  4  Gray,  502,  1855.  "Corporations,"  says  Jewett,  J.,  in  Hodges  v.  Buffalo, 
2  Denio,  110,  have  no  other  powers  than  such  as  are  expressly  granted,  or 
such  as  are  necessary  to  carry  into  effect  the  powers  expressly  granted." 
In  New  York  there  is  a  statutory  declaration  of  this  common  law  principle. 
1  Rev.  Sts.  599,  Sees.  1-3.  "  Until  the  case  of  Hodges  v.  Buffalo,  2  Denio,  110, 
nothing,"  says  Pratt,  J.,  3  Comst.  433,  "was  more  frequent  than  for  city 
authorities  to  vote  largesses  and  give  splendid  banquets  for  objects  and 
purposes  having  no  possible  connection  with  the  growth  or  weal  of  the 
body  politic,  thus  subjecting  their  constituents  to  unnecessary  and  oppress- 
ive taxation."    Ante,  p.  101,  Sec.  55;  post,  Chap.  XXII. 


142  MUNICIPAL.  CORPORATIONS.  [CH.  VI. 

Impounding  Animals. 

§  101.  Power  to  impound  and  forfeit  domestic  animals  must 
be  expressly  granted  to  the  corporation,  and  laws  or  ordinances 
authorizing  the  officers  of  the  corporation  to  impound,  and, 
upon  taking  specified  proceedings, :  to  sell  the  property,  are 
penal  in  their  nature,  and  where  doubtful  in  their  meaning 
will  not  be  construed  to  produce  a  forfeiture  of  the  property, 
but  rather  the  reverse.  And  the  pound-keeper  cannot  justify 
in  an  action  brought  against  him  by  the  property  owner  unless 
he  has  strictly  complied  with  all  the  requisites  of  the  law  under 
which  he  acts.  Thus,  if  he  sells  without  giving  the  requisite 
notice,  or  for  the  full  length  of  time  required,  he  is  liable, 
although  the  owne"r  sustains  no  actual  injury  from  the  omis- 
sion, or  the  owner  may  treat  the  sale  as  void  and  recover  his 
property.1     A  statute  directing  the  mayor  to  issue  a  warrant 

1  White  v.  Tallman,  2  Dutch.  (N.  J.)  67,  1856 ;  Willis  v.  Legris,  45  111.  289 ; 
ib.  218;  Rounds  v.  Stetson,  45  Maine,  596J 1858;  Gilmore  v.  Holt,  4  Pick.  258, 
1826;  Bounds  v.  Mansfield,  38  Maine,  586,  1854;  Smith  c.  Gates,  21  Pick.  55, 
where  the  rule  in  the  text  was  applied,  although  the  sale  was  made  only 
twenty  minutes  before  the  expiration  of  the  time  required  by  law.  S6 
actual  knowledge,  by  the  owner  of  the  beasts;  of  the  impounding  thereof, 
is  not  equivalent  to  the  written  notice  required  by  statute.  Coffin  v.  Field,  7 
Cush.  355.  Abridgement  of  the  required  notice  for  the  shortest  period 
avoids  the  sale ;  and  so  does  a  sale,  at  one  bidding,  of  two  animals  having 
different  owners.  Clark  v.  Lewis,  35  111.  417, 1864.  Purchaser  must  show  a 
regular  and  authorized  sale  when  his  title  is  questioned  by  the  former 
owner.  Ib.  Breach  of  a  pound,  and  liberating  an  animal  therein  confined, 
is  no  violation  of  an  ordinance  prohibiting  "  any  person  from  opposing  or 
interrupting  any  city  officer  in  the  execution  of  the  ordinances  of  the  city.'' 
Mayor,  &c.  o.  Omburg,  22  Geo.  67,  1857.  Marshal  must  strictly  comply  with 
the  ordinance,  or  he  becomes  a  trespasser  from  the  beginning:  13  Pick. 
384 ;  4  ib.  258 ;  21  ib.  55 ;  13  Met.  407 ;  7  Cush.  355 ;  9  Pick.  14 ;  12  Met.  118 ; 
23  Pick.  255 ;  12  Met.  198.  Owner  cannot  legally  break  pound  and  rescue 
animals:  5  Pick.  514;  5  Cush.  267.  Pound  defined:  2  Cush.  305.  Marshal 
cannot  delegate  his  authority  to  others  to  impound  for  him  generally,  and 
in  his  absence,  but  may  have  assistants  to  act  in  concert  with  him :  Jackson 
v.  Morris,  1  Denio,  199.  Officers  must  use  the  public  pound:  1  Rhode 
Island,  219.  Replevin  does  not  lie  against  a  pound-keeper,  at  common  law, 
while  the  creatures  are  in  his  legal  custody :  Co.  Litt.  47  B ;  ib.  145  B ;  1 
Chit.  PI.  159 ;  Pritchard  v.  Stevens,  6  Durn.  ,&  E.  522 ;  Isley  v.  Stubbs,  5  Mass. 
283 ;  Smith  e.  Huntington,  3  N.  H.  76 ;  but  it  does  lie  if  he  voluntarily  parts 
with  his  legal  control  over  them,  or  if  he  impounds  them;  in  any  other 
places  than  those  prescribed  by  the  law,  as,  for  example,  in  his  pasture 
or  barn,  although  this  be  done  the  more  conveniently  to  furnish  them 


CH.  VI.]        MUNICIPAL   CHAETBRS  — -  PARTY  WALLS,   AC.  143 

annually,  within  ten  days  from  July  1st,  commanding  police 
officers  to  kill  all  dogs  not  licensed  according  to  law,  "  when- 
ever and  wherever  found,"  is  not  in  conflict  with  the  constitu- 
tion of  Massachusetts.1 

Party  Walls. 

§102.  Power  in  a  charter  to  pass  ordinances  "  to  authorize 
the  erection  of  party  walls  and  fences,  and  to  regulate  them," 
includes  the  power  to  authorize  their  erection  upon  the  appli- 
cation of  either  owner,  and  without  the  consent  of  the  other  ; 
and  such  an  ordinance  is  not  unconstitutional  because  com- 
pensation is  not  provided  for  the  land  occupied  by  the  wall.2 

Public  Defence. 

§  103.  During  the  late  rebellion,  acts  were  passed  by  many 
of  the  legislatures  of  the  adhering  states,  in  effect  authorizing 
municipalities  to  raise  money,  by  loans  and  taxation,  to  pay 
bounties  to  volunteers,  to  enable  the  municipality  to  fill  its 
quota  under  the  calls  of  the  president  for  troops,  and  thereby 
avoid  an  anticipated  draft.  The  constitutional  principles  in- 
volved in  legislation  of  this  character  will  be  found  learnedly 

with  food  and  drink :  Bills  v.  Kinson,  1  Foster  (N.  H.),  448,  1850.  In  New 
Hampshire,  if  creatures  are  found  "  doing  damage,"  they  may  be  im- 
pounded and  appraisers  are  tb  ascertain  "whether am/  damage  was  done ;  " 
held  that  the  statute  contemplated  actual,  and  not  merely  nominal,  dam- 
ages to  justify  impounding :  Osgood  V.  Green,  33  N.  H.  318,  and  cases  cited. 
As  tb  power  to  take  up  and  forfeit  animals  at  large,  see,  also,  chapter  on 
Ordinances,  post. 

1  Blair  v.  Forehand,  100  Mass.  136.  The  act  of  July  3d,  1863,  entitled  "  an 
act  in  relation  to  damages  occasioned  by  dogs,''  so  far  as  it  undertakes  to 
charge  the  owner  with  the  amount  of  damage  done  by  his  dog  as  fixed  by 
the  selectmen  of  the  town,  without  an  opportunity  to  be  heard,  is  unconsti- 
tutional ;  because  it  is  contrary  to  natural  justice  and  not  within  the  scope 
of  legislative  authority  conferred  by  the  constitution  on  the  general  court, 
and  also  because  it  is  in  violation  of  the  provision  of  the  bill  of  rights, 
which  secures  the  right  of  trial  by  jury  in  all  controversies  concerning 
property,  except  in  cases  where  it  had  not  theretofore  been  used  and  prac- 
ticed :  East  Kingston  v:  Towle,  48  N.  H.  The  legislature  have  power  to 
make  towns  liable  for  damage  done  within  their  limits  by  dogs,  and  to  give 
towns  a  right  of  action  to  recover  the  actual  damage  from  the  owners  of  the 
dogs:  lb. 

1  Hunt  v.  Ambruster,  17  N.  J.  Eq.  208, 1865. 


144  MUNICIPAL  CORPORATIONS.  [CH.   VI. 

discussed  in  the  cases  below  cited,  which  fully  establish  the 
validity  of  such  legislation.1  But,  without  express  authority,  a 
municipality  possesses  no  such  power;2  yet,  if  exercised,  it 
may  be  validated  by  subsequent  legislative  action.3 

Aid  to  Railway  Companies. 

§  104.  The  most  noted  of  extra-municipal  powers  conferred 
upon  municipalities  and  public  corporations  is  the  authority  to 
aid  in  the  construction  of  railways  by  subscribing  to  their 
stock,  and  taxing  the  inhabitants  or  the  property  within  their 
limits  to  pay  the  indebtedness  thereby  incurred.  Legislation 
of  this  kind  had  its  origin  within  a  period  comparatively  re- 
cent, and  has  been  more  or  less  resorted  to,  at  times,  by  almost 
every  state  in  the  Union.  As  it  is  an  author's  duty,  in  a  work 
of  this  character,  to  state  what  the  law  is,  rather  than  what,  in 
his  judgment,  it  ought  to  be,  he  feels  constrained  to  admit  that 
a  long  and  almost  unbroken  line  of  judicial  decisions  in  the 
courts  of  most  of  the  states  has  established  the  principle  that, 
in  the  absence  of  special  restrictive  constitutional  provisions, 
it  is  competent  for  the  legislature  to  authorize  a  municipal  or 
public  corporation  to  aid,  in  the  manner  above  indicated,  the 
construction  of  railways  running  near,  or  to,  or  through  them. 
The  cases  on  this  subject  are  referred  to  in  the  note;*  but, 

1  Speer  v.  School  Directors,  50  Pa.  St.  150,  two  judges  dissenting ;  Broad- 
head  v.  Milwaukee,  19  Wis.  652 ;  Booth  v.  Woodbury,  32  Conn.  118 ;  Shack- 
ford  v.  Newington,  46  N.  H.  415 ;  Lowell  v.  Oliver,  8  Allen  (Mass.),  247;  Free- 
land  v.  Hastings,  10  Allen,  570 ;  Comer  v.  Folsom,  13  Minn.  219 ;  Cooley, 
Const.  Lim.  219-229 ;  Veazie  v.  China,  50  Maine,  518. 

*  Stetson  v.  Kempton,  13  Mass.  272;  Fiske  v.  Hazzard,  7  Rh.  Is.  438; 
Shackford  v.  Newington,  supra;  ante,  p.  41. 

3  Booth  v.  Woodbury,  32  Conn.  118 ;  Kunkle  v.  Franklin,  13  Minn.  127 ; 
Comer  v.  Folsom,  13  Minn.  219 ;  ante,  p.  92,  Sec.  46. 

*  Goddin  v.  Crump  (act  authorizing  the  city  of  Richmond  to  subscribe 
stock  in  a  company  incorporated  to  improve  the  navigation  of  the  James 
river,  and  to  build  a  road  to  the  falls  of  the  Kanawha  river),  8  Leigh  (Va.), 
120, 1837.  This  is  the  earliest  case  of  the  class.  Bridgeport  v.  Railroad 
Company,  15  Conn.  475,  1843 ;  Society,  &c.  v.  New  London,  29  Conn.  174 ; 
Nichol  v.  Nashville,  9  Humph.  (Tenn.)  252, 1848 ;  Powers  v.  Superior  Court, 
23  Geo.  65,  1857 ;  Talbot  v.  Dent,  9  B.  Mon.  (Ky.)  526,  1849 ;  Slack  v.  Rail- 
road Company,  13  ib.  1,  1852 ;  Maddox  v.  Graham,  2  Met.  (Ky.)  56 ;  Com- 
monwealth v.  Mc Williams,  11  Pa.  St.  61,  1849 ;  Sharpless  v.  Mayor,  &c.  21  ib. 
147 ;  ib.  188 ;  Commonwealth  v.  Perkins,  43  Pa.  St.  410 ;  47  ib.  189 ;  Cotton  v. 


CH.  VI.]  MUNICIPAL   CHARTERS  —  AID  TO  RAILWAYS.  145 

notwithstanding  the  opinion  of  so  many  learned  and  eminent 
judges,  there  remain  serious  doubts  as  to  the  soundness  of  the 
principle,  viewed  simply  as  one  of  constitutional  law.  Re- 
garded in  the  light  of  its  effects,  however,  there  is  little  hesi- 
tation in  affirming  that  this  invention  to  aid  private  enterprises 
has  proved  itself  haneful  in  the  last  degree. 

County  Commissioners,  6  Flor.  610,  1856 ;  Railroad  Company  v.  Commis- 
sioners, 1  Ohio  St.  77, 1852 ;  Cass  e.  Dillon,  2  ib.  607, 1853 ;  Ohio  v.  Commis- 
sioners, &c.  6  ib.  280 ;  7  ib.  327 ;  8  ib.  394 ;  12  ib.  596,  624 ;  14  ib.  569 ;  Strick- 
land v.  Eailroad  Company,  27  Miss.  209 ;  City  v.  Alexander,  23  Mo.  483, 
1856 ;  39  ib.  485 ;  Leavenworth  County  v.  Miller,  Supreme  Court  of  Kansas, 
1871,  6  Kansas  (not  yet  reported).  The  opinion  of  Valentine,  J.,  covers  the 
whole  ground  of  controversy.  Kingman,  C.  J.,  concurred,  and  Brewer,  J., 
dissented.  Clarke  v.  Rochester,  24  Barb.  446,  1857 ;  Bank  of  Rome  v.  Rome, 
18  N.  Y.  38, 1858 ;  Starin  v.  Genoa,  23  N.  Y.  431,  1861 ;  People  v.  Mitchell,  35 
N.  Y.  551,  1866 ;  Police  Jury  v.  Succession  of  McDonough,  8  La.  An.  341; 
Aurora  v.  West,  9  Ind.  74,  1857 ;  22  ib.  88 ;  Robinson  v.  Bidwell,  22  Cal.  379 ; 
Stein  v.  Mayor,  &c.  24  Ala.  591,  1854  ;  Gibbons  v.  Railroad  Company,  36  Ala. 
410 ;  Prettyman  v.  Supervisors,  19  111.  406,  1858  ;  S.  P.  24  ib.  75,  208 ;  Butler 
v.  Dunham,  27  111.  474,  1861 ;  Robertson  v.  Rockford,  21  111.  451 ;  and  see, 
also,  as  to  authority  to  precinct  to  levy  tax  to  maintain  a  bridge,  Shaw  v. 
Dennis,  5  Gilm.  (111.)  405 ;  San  Antonio  v.  Jones,  28  Texas,  19 ;  Copes  v. 
Charleston,  10  Rich.  (S.  C.)  136,  1857 ;  Augusta  Bank  v.  Augusta,  49  Maine, 
507 ;  Clark  v.  City,  &c.  10  Wis.  136 ;  ib.  195,  1859  (compare,  Whiting  v.  She- 
boygan Railroad  Company,  infra).  The  Supreme  Court  of  Wisconsin,  in  an 
opinion  delivered  in  Phillips  v.  Albany,  at  the  June  term,  1871,  say,  the 
power  of  the  legislature  to  authorize  municipal  subscriptions  to  the  stock  of 
railroads  is  settled  by  former  decisions  in  this  state,  as  well  as  in  other  states, 
though  the  majority  of  this  court  would  be  disposed  to  deny  the  power, 
if  it  were  a  new  question.  The  Supreme  Court  of  the  United  States  have 
intimated,  if  not  decided,  that  the  power  may  be  conferred  by  the  legisla- 
ture. Thompson  v.  Lee  County,  3  Wall.  327 ;  Knox  County  v.  Aspinwall,  21 
How.  (U.  S.)  539,  547,  1858 ;  Zabriskie  e.  Railroad  Company,  23  ib.  381 ; 
Amey  o.  Mayor,  24  ib.  365,  376 ;  Gelpcke  v.  Dubuque,  1  Wall.  175,  1863 ; 
Mercer  County  v.  Hacket,  ib.  81 ;  Meyer  v.  Muscatine,  ib.  384.  Caldwell  v. 
Justices,  4  Jones  (N.  C.)  Bq.  323  ;  Taylor  v.  Newberne,  2  ib.  141,  1855.  In 
Iowa  the  constitutionality  of  railroad  subscriptions  by  municipalities  was 
first  (1853)  affirmed  in  Dubuque  County  v.  Railroad  Company,  4  G.  Greene, 
1 ;  afterwards  (1862)  denied,  State  v.  Wapello  County,  13  Iowa,  388  ;  denial 
adhered  to  down  to  1869,  Hanson  v.  Vernon,  27  Iowa,  28 ;  but  note  the  vir- 
tual, yet  not  acknowledged,  overthrow  of  the  line  of  decisions  denying  the 
power,  in  Stewart  v.  Polk  County,  30  Iowa,  1, 1870.  The  legislative  and  judi- 
cial history  of  the  subject  is  fully  stated  in  King  v.  Wilson,  1  Dillon's  C.  C. 
R.  555, 1871.  By  the  constitution  of  Tennessee,  the  legislature  has  power 
to  authorize  counties  and  incorporated  towns  to  impose  taxes  for  "  county 
and  corporation  purposes."    In  Nichol  v.  Mayor,  &c.  of  Nashville,  9  Humph. 

19 


146  MUNICIPAL    CORPORATIONS.  [CH.    VI. 

§  105.  It  is  not  proposed  here  to  enter  into  a  discussion  of 
the  constitutional  principles  involved  in  such  legislation.  The 
arguments  in  favor  of  the  power  are  filly  presented  in  the 
leading  case  of  Sharpless  v.  The  Mayor,1  and  against  it  in  Han- 
sen v.  Vernon,2  in  "Whiting  v.  Sheboygan  Railway  Company,3 
and  in  The  People  v.  Township  Board/  to  which,  and  to  the 

252, 1848,  it  was  held,  notwithstanding  this  provision,  that  the  legislature 
possessed  the  power  to  authorize  municipal  corporations  to  subscribe  for 
the  stock  of  railway  companies  whose  roads  run  to  or  near  such  corpora- 
tions, and  that  this  was  a  legitimate  corporate  purpose.  So,  in  Florida,  held  to 
be  a  "  county  purpose,"  within  the  meaning  of  the  constitution ;  but  quaere? 
There  is  nothing  in  the  constitution  of  Alabama  prohibiting  the  legislature 
from  authorizing  a  municipal  corporation  to  levy  a  tax  on  the  real  estate 
within  the  corporation  to  aid  in  the  construction  of  a  railroad,  even  though 
the  road  extends  beyond  the  limits  of  the  corporation,  or  even  of  the  state. 
So  held,  in  Stein  v.  Mobile,  24  Ala.  591, 1854.  An  act  authorizing  a  munici- 
pal corporation  to  borrow  money  to  aid  in  the  construction  of  a  railroad, 
upon  the  written  assent  of  two-thirds  of  the  resident  tax-payers,  or  upon 
the  approval  of  two-thirds  of  the  tax-paying  electors,  is  constitutional  and 
valid ;  and  it  is  not  open  to  the  objection  that  it  submits  a  legislative  ques- 
tion to  the  town :  Starin  v.  Genoa,  23  N.  Y.  439,  1861 ;  Gould  v.  Sterling,  ib. 
439,  456 ;  Bank  of  Rome  v.  Rome,  18  N.  Y.  38.  These  cases  distinguished  on 
this  point  from  Barto  v.  Himrod,  4  Seld.  483.    Ante,  p.  63,  Sec.  23. 

1  Sharpless  v.  Mayor,  21  Pa.  St.  147.    Am.  Law  Rev.  Oct.  1870. 

1  Hanson  v.  Vernon,  27  Iowa,  28,  1869. 

"  Whiting  v.  Sheboygan  Railway  Co.  9  Am.  Law  Reg.  (N.  S.)  156,  1870  ; 
S.  C.  25  Wis.  opinion  by  Dixon,  C.  J. 

4  People  v.  Township  Board,  9  Am.  Law  Reg.  (N.  S.)  487,  and  notes, 
1870;  S.  C.  20  Mich.  "Bonds  like  these  are  of  modern  invention,  and 
when  counties  and  towns  were  decoyed  into  the  use  of  them  for  the  pur- 
pose of  railroad  corporations,  they  had  to  obtain  enabling  statutes  before 
they  could  prostitute  municipal  seals  to  any  such  purpose.  And  as  soon  as 
the  people  [of  Pennsylvania]  began  to  feel  the  consequences  of  applying 
the  fundamental  principle  of  commercial  paper  to  their  bonds,  they  altered 
their  organic  law  so  as  to  render  such  bonds  and  enabling  statutes  impossi- 
bilities in  the  future."  Per  Woodward,  C.  J.,  County  v.  Brinton,  47  Pa.  St.  367, 
1864.  The  evil  of  these  subscriptions  was  the  cause  of  the  amendment  to 
the  constitution.  Per  Read,  J.,  Pennsylvania  Railroad  Co.  v.  Philadelphia, 
ib.  193.  The  amended  constitutional  provision  in  Pennsylvania  is  as  fol- 
lows :  "  The  legislature  shall  not  authorize  any  county,  city,  borough, 
township,  or  incorporated  district,  by  virtue  of  a  vote  of  its  citizens,  or  oth- 
erwise, to  become  a  stockholder  in  any  company,  association,  or  corpora- 
tion, or  obtain  money  for,  or  loan  its  credit  to,  any  corporation,  association, 
institution,  or  party."  Sec.  7,  Art.  XI.  Amendment  to  Constitution,  1857. 
See  Pennsylvania  Railroad  Co.  i>.  Philadelphia,  47  Pa.  St.  189,  for  construction 
of  this  amendment 


CH.  VI.]  MUNICIPAL   CHARTERS AID  TO  RAILWAYS.  '147 

other  cases  before  cited,  the  reader  is  referred.  The  judg- 
ments affirming  the  existence  of  the  power  have  generally  met 
with  strong  judicial  dissent  and  with  much  professional  dis- 
approval, and  experience  has  demonstrated  that  the  exercise 
of  it  has  been  productive  of  bad  results.  Taxes,  it  is  every- 
where agreed,  can  only  be  imposed  for  public  objects,  and  tax- 
ation to  aid  in  building  the  roads  of  private  railway  companies  is 
hardly  consistent  with  a  proper  respect  for  the  inviolability  of 
private  property  and  individual  rights.  Fraud  usually  accom- 
panies its  exercise,  and  extravagant  indebtedness  is  the  result ; 
and,  sooner  or  later,  the  power  will  be  denied  either  by  con- 
stitutional provision  (as  in  Pennsylvania,  Ohio,  and  Illinois,  it 
already  is)  or  by  legislative  enactment.  It  is,  perhaps,  too  late 
to  expect,  in  view  of  the  line  of  decisions  referred  to,  that  the 
courts  in  the  states  which  have  already  passed  upon  the  ques- 
tion will  retrace  their  steps,  and  too  much  to  hope  that  the 
coui'ts  in  other  states  will  have  the  boldness  successfully  to 
stem  the  strong  tide  of  authority,  strengthened,  as  it  will  be, 
by  temporary  popular  feeling  and  insidious  corporate  influ- 
ence. 

§  106.  The  courts  concur,  with  great  unanimity,  in  holding 
that  there  is  no  implied  authority  in  municipal  corporations  to 
incur  debts  or  borrow  money  in  order  to  become  subscribers 
to  the  stock  of  railway  companies,  and  that  such  power  must 
be  conferred  by  express  grant.  To  become  stockholders  in 
private  corporations  is  manifestly  foreign  to  the  purposes  in- 
tended to  be  subserved  by  the  creation  of  corporate  munici- 
palities, and  the  practice  of  bestowing  powers  of  this  kind  is  of 
recent  origin,  and  hence  the  rule,  that  in  order  to  exist  it  must" 
be  specially  conferred,  and  cannot  be  deduced  from  the  or- 
dinary municipal  grants.1 

1  Aurora  v.  "West,  22  Ind.  88,  508,  1864 ;  Starin  v.  Genoa,  23  N.  Y.  439, 1869 ; 
Gould  v.  Sterling,  ib.  439,  456 ;  Achison  v.  Butcher,  3  Kansas,  104,  1865 ; 
Burnes  v.  Achison,  2  ib.  454 ;  Bank  v.  Borne,  18  N.  Y.  38  ;  Bridgeport  v. 
Housatonic  Railway  Co.  15  Conn.  475  ;  Marsh  v.  Fulton  Co.  10  Wall.  676, 
1870;  Cook  v.  Manufacturing  Co.  1  Sneed  (Tenn.),  698,  1854;  Nichol  v. 
Nashville,  9  Humph.  (Tenn.)  252 ;  City  and  County  of  St.  Louis  v.  Alexan- 
der, 23  Mo.  483, 1856 ;  Jones  v.  Mayor,  &c.  25  Geo.  610,  1858 ;  Oevricke  v. 
Pittsburg,  7  Am.  Law  Reg.  725  ;  Duanesburg  v.  Jenkins,  40  Barb.  574 ;  French 
d.  Teschemaker,  24  Cal.  518,  1864;    People  v.  Mitchell,  35  N.  Y.  551,  1866; 


148  MUNICIPAL    CORPORATIONS.  [CH.    VI. 

Accordingly,  where  a  city  was,  by  charter,  specifically  au- 
thorized to  construct  wharves,  docks,  piers,  water  works,  works 
for  lighting  the  city,  &c,  and  was  also  authorized,  upon  certain 
formalities,  to  create  a  debt,  this  was  considered  to  mean  a  debt 
for  some  of  these  specified  purposes,  and  not  to  empower  the 
corporate  authorities  to  issue  bonds  to  aid  in  the  construction 
of  a  railroad.1  So  there  is  no  implied  power  in  a  municipal 
corporation  to  take  stock  in  a  manufacturing  company  located  in 
or  near  the  corporation,2  or  to  aid  or  engage  in  other  enter- 
prises, essentially  private.3 

Thompson  v.  Lee  County,  3  Wall.  327.  "  No  lawyer  doubts  that  a  borough 
can  only  subscribe  to  a  railroad  when  expressly  authorized  by  law."  Black, 
C.  J.,  in  Sharpless's  Case,  cited  Pennsylvania  Railway  Co.  e.  Philadelphia, 
47  Pa.  St.  189.  A  railroad  is  such  a  "  road  "  as  is  embraced  in  the  terms  of  a 
charter  by  which  the  common  council  of  a  city  were  authorized  "  to  take 
stock  in  any  chartered  company  for  making  roads  to  said  city.''  Railroad 
Co.  v.  Evansville,  15  Ind.  395)  1860;  Aurora  v.  West,  9  ib.  74 ;  post,  chapter  on 
Contracts.  The  legislature  may,  before  (Aspinwall  v.  Daviess  County,  22 
How.  364),  if  not,  indeed,  after,  the  subscription  is  made,  but  before  it  is 
paid  for,  annul  the  proceeding  and  authorize  the  municipal  corporation  to 
withdraw  the  subscription  and  release  its  right  to  the  stock.  People  v. 
Coon,  25  Cal.  635.    Extent  of  legislative  power,  ante,  Chap.  IV. 

1  Lafayette  o.  Cox,  5  Ind.  (Port.)  38, 1854.  As  to  rights  of  bondholders, 
however,  see  post,  Contracts  and  decisions  in  the  National  and  State  Courts, 
there  cited.  Power  in  general  to  the  city  council  of  Charleston,  by  the 
charter  of  1783,  to  pass,  inter  alia,  "  every  other  by-law  as  shall  appear  to  the 
city  council  requisite  and  necessary  for  the  security,  welfare,  and  convenience 
of  said  city,"  was  held  by  the  Court  of  Errors,  to  authorize  the  city  to  sub- 
scribe to  the  stock  of  railroad  companies  within  or  without  the  state. 
Copes  v.  Charleston,  10  Rich.  (South  Car.)  Law  491,  1857 ;  see  City  Coun- 
cil v.  Baptist  Church,  4  Strob.  Law,  306,  308,  for  preamble  to  the  charter  of 
Charleston.  There  can  be  little  doubt  that  this  is  pressing  the  constructive 
powers  of  the  corporation  to  an  unwarrantable  extent.  Construction  of 
special  acts  or  charters  held  to  give  power  to  take  stock  and  issue  bonds. 
Meyer  v.  Muscatine,  1  Wall.  384, 1863 ;  Curtis  v.  Butler  County,  24  How.  435 ; 
Gelpcke  v.  Dubuque,  1  Wall.  220 ;  City  and  County  of  St.  Louis  v.  Alexander, 
23  Mo.  483 ;  Railroad  Company  v.  Otoe  County,  1  Dillon,  C.  C.  338,  1871  ; 
Rogers  v.  Burlington,  3  Wall.  654  (compare.  Chamberlain  v.  Burlington,  19 
Iowa,  395) ;  Posdick  v.  Perrysburg,  14  Ohio  St.  472 ;  Goshorn  v.  County,  1 
West  Va.  308;  Taylor  v.  Newberne,  2  Jones  (North  Car.),  Eq.  141 ;  Caldwell 
v.  Justices,  4  ib.  323 ;  Veeder  v.  Lima,  19  Wis.  280,  1865.  The  opinion  of 
Dixon,  C.  J.,  contains  an  interesting  discussion  of  the  questions  presented 
by  that  case. 

2  Cook  v.  Manufacturing  Co.  1  Sneed  (Tenn.),  698,  1854. 

3  Clark  v.  Des  Moines,  19  Iowa,  199,  1865 ;  Hanson  ».  Vernon,  27  Iowa, 
28 ;  Cooley,  Const.  Lim.  212.     A  city  corporation  cannot  subscribe  for  stock 


CH.  VI.]  MUNICIPAL   CHAKTEJtS AID  TO  RAILWAYS.  149 

§  107.  Whether  special  authority  to  a  municipality  to  bor- 
row money  to  pay  for  stock  subscribed  to  a  railway  company 
will  impliedly  repeal,  pro  tanto,  existing  charter  limitations  upon 
the  rate  of  taxation,  is  a  question  depending  upon  construction, 
and  in  relation  to  which  the  courts  have  differed.  But  the 
strong  inclination  of  the  National  Supreme  Court  seems  to  be 
in  favor  of  that  construction,  which  restricts  such  limitations 
to  the  exercise  of  the  power  of  taxation  in  the  ordinary  course 
of  municipal  action.1 

§  108.  If  the  power  to  issue  bonds  in  aid  of  railway  and 
other  like  enterprises  has  not  arisen,  by  reason  of  an  absolute 
non-compliance  with  conditions  precedent,  they  are  void  into 
whosesoever  hands  they  may  come.2  The  power,  when  it 
exists,  to  aid  or  engage  in  extra-municipal  enterprises,  being 
extraordinary  in  its  nature  and  burdensome  to  the  citizen, 
must  (at  least  between  all  persons  except  bona  fide  holders  of 
the  securities)  be  strictly  pursued  according  to  the  terms  and 

in  a  steamship  line  without  express  legislative  authority.  Pennsylvania 
Railroad  Company  v.  Philadelphia,  47  Pa.  St.  189 ;  and  since  the  new  consti- 
tution of  Pennsylvania  (Art.  XI.  Sec.  7,  Amendment  to  Constitution,  1857), 
the  legislature  cannot  give  that  power.  Where  a  charter  recited  its  purpose 
to  delegate  to  the  city  authorities  power  to  make  such  ordinances  as  the 
"  contingencies,  or  the  local  circumstances,"  of  the  corporation  might  re- 
quire, and  gave  "  full  power  and  authority  to  make  such  assessments  on  the 
inhabitants  of  the  city,  or  those  who  hold  taxable  property  therein,  for  the 
safety,  benefit,  and  advantage  of  the  city,  as  shall  appear  to  them  expedi- 
ent," the  court  were  of  opinion  that  the  city  might  assess  a  tax  upon  the 
real  estate  within  the  corporation  for  the  purpose  of  constructing  a  canal 
"  for  manufacturing  purposes,  and  for  the  better  securing  an  abundant  supply 
of  water  for  the  city,"  and  if  it  could  not,  yet  that  it  was  competent  for  the 
legislature,  as  it  did  by  a  subsequent  act,  to  adopt  and  confirm  the  action  of 
the  city  in  passing  such  an  ordinance.  Frederick  v.  Augusta,  5  Geo.  561, 
1848.  Aside  from  the  curative  act,  the  correctness  of  the  view  taken  by  the 
court  is  by  no  means  clear.    Ante,  p.  92,  Sec.  46. 

1  Butz  v.  Muscatine,  8  Wall.  575,  1869.  Contra,  Clark  v.  Davenport,  14 
Iowa,  494 ;  Learned  v.  Burlington,  2  Am.  Law  Reg.  (N.  S.)  394,  and  note ; 
Leavenworth  v.  Norton,  1  Kansas,  432 ;  Burnes  v.  Achison,  2  Kansas,  254. 
And  see,  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496 ;  Amey  v.  Allegheny 
City,  2  How.  (U.  S.)  364 ;  Fosdick  v.  Perrysburg,  14  Ohio  St.  472. 

2  Marsh  v.  Fulton  County,  supra;  Clay  v.  County,  4  Bush  (Ky.),  154.  See, 
further,  chapter  on  Contracts,  post,  where  the  rights  of  bona  fide  holders  of 
such  instruments  are  considered  at  length. 


150  MUNICIPAL   CORPORATIONS.  [CH.   VI. 

conditions  of  the  grant  conferring  it.1  Thus,  under  an  act 
authorizing  town  officers  to  borrow  money  upon  the  credit  of 
the  town,  and  to  pay  it  over  to  a  railroad  corporation,  to  be 
expended  by  it  "  in  grading  and  constructing  a  railroad," 
taking  in  exchange  its  stock  at  par,  it  is  not  within  the  power 
of  municipal  officers  to  make  a  direct  exchange  of  the  bonds 
of  the  town,  even  for  an  equal  nominal  amount  of  stock,  as 
this  leaves  it  in  the  power  of  the  railroad  corporation  to  sell 
such  bonds  at  a  discount.2 

1  In  Pennsylvania  the  doctrine  has  been  adopted,  that  equity  will  compel 
the  holder  to  take  what  he  gave  and  interest  where  the  bonds  were  issued 
in  violation  of  statute;  but  qaxret  See  County  v.  Brinton,  47  Pa.  St.  367; 
Pennsylvania  Railroad  Company  v.  Philadelphia,  ib.  193. 

8  Starin  v.  Genoa,  23  N.  Y.  439 ;  Gould  v.  Sterling,  ib.  439.  In  the  case  last 
cited,  Selden,  J.,  p.  460,  remarks :  "  In  the  present  case,  the  only  authority 
given  [to  the  town]  by  the  act  is  to  borrow  upon  the  bonds  of  the  town. 
No  express  power  to  sell  the  bonds  is  given,  and  no  such  power  can,  I 
think,  be  implied.  To  borrow  money,  and  give  a  bond  or  obligation  for  it, 
and  to  sell  a  bond  or  obligation  for  money,  are  by  no  means  identical 
transactions.  In  the  one  case  the  money  and  the  bond  would,  of  course, 
be  equal  in  amount;  in  the  other  they  might  or  might  not  be  equal." 
Whether  such  a  defence  would  be  available  against  a  bona  fide  holder  of  the 
bonds  was  not  determined.  See  Woods  v.  Lawrence  County,  1  Black,  386 ; 
Moran  v.  Miami  County,  2  Black,  722. 


CH.  VII.]       DISSOLUTION   OF   MUNICIPAL   CORPORATIONS.  151 


CHAPTER  VII. 

Dissolution  of  Municipal  Corporations. 

In  England. 

§  109.  In  England,  a  municipal  corporation  may  be  dis- 
solved, 1.  By  an  act  of  'parliament,  this  being  considered  a 
necessary  consequence  of  the  omnipotence  of  that  body  in  all 
matters  of  political  institution.1  The  king  may,  by  his  prerog- 
ative, create,  but  cannot  dissolve  or  destroy  a  corporation ;  may 
grant  privileges,  but,  when  vested,  cannot  take  them  away.2 

It  has  there  often  been  declared,  that  a  municipal  corpora- 
tion may  also  be  dissolved,  2.  By  the  loss  of  an  integral  part,  or 
the  loss  of  all,  or  of  the  majority  of  the  members  of  any  inte- 
gral part,  without  which  it  cannot  transact  its  business  unless 
the  parts  that  remain  have  the  right  to  act  or  to  restore  the 
corporate  succession.3 

1  Co.  Litt.  176,  note;  2  Kyd,  447;  Bex  v,  Amery,  2  Term  E.  515;  Glover, 
408;  Angell  &  Ames,  Ch.  22,  Sec.  767;  2  Kent's  Com.  305;  County  Commis- 
sioners v.  Cox,  6  Ind.  403;  State  v.  Trustees,  &c.  5  Ind.  77;  ante,  p.  45. 

2  Ante,  p.  44,  Sec.  15;  pp.  46,  47,  Sec.  16;  Eex  v.  Amery,  supra;  Eegents 
of  University  v.  Williams,  9  Gill  &  Johns.  365,  409,  1838.  In  this  case, 
Buchanan,  J.,  in  substance,  observes :  The  crown  may  create,  but  cannot, 
at  pleasure,  dissolve  a  corporation,  or,  without  its  consent,  alter  or  amend 
its  charter.  Parliament  may  do  this;  but,  restrained  by  public  opinion,  it 
has  not  undertaken  to  dissolve  any  private  corporation  since  the  time  of 
Henry  VIII.  so  that  the  power  to  do  so  rests  wholly  in  theory.  In  1783  a 
bill  was  proposed  to  remodel  the  East  India  Company.  Lord  Thurlow  op- 
posed it  as  subversive  of  the  law  and  constitution,  and,  in  strong  language, 
declared  it  to  be  "  an  atrocious  violation  of  private  property,  which  cut 
every  Englishman  to  the  bone.'' 

3  Willc.  on  Corp.  325,  Chap.  VII.  This  chapter  contains  an  interesting 
discussion  of  the  question  of  dissolution,  and  it  would  seem  that  the  author, 
notwithstanding  the  occasional  judgments  and  the  many  and  broad  dicta  in 
the  books,  doubts  whether  there  can  be  an  actual  and  total  dissolution  of  a 
municipal  corporation,  either  by  the  loss  of  an  integral  part,  or  by  surren- 
der, or  by  forfeiture.  But  see  2  Kyd,  Ch.  5 ;  Glover,  Ch.  20 ;  Angell  &  Ames, 
Sec.  769 ;  and  particularly  Eex  v.  Morris  and  Eex  v.  Stewart,  3  East,  213 ;  4 


152  MUNICIPAL    CORPORATIONS.  [CH.  VII. 

3.  By  a  surrender  of  the  franchise  of  being  a  corporation  to 
the  crown,  whose  acceptance  is  necessary;  and  to  be  effectual 
the  surrender  must  be ,  enrolled  in  chancery.  The  power  to 
surrender  has  been  much  questioned;  the  argument  in  favor 
of  it  being,  that  since  by  royal  grant  and  acceptance  a  cor- 
poration may  be  created,  so  by  surrender  and  acceptance  it 
may  be  annulled.  It  is  admitted,  however,  that  a  corporation 
created  or  confirmed  by  parliament  or  statute  cannot  dissolve 
itself  by  a  surrender  of  its  charter  or  franchise.1 

4.  By  forfeiture  of  its  charter,  through  negligence  or  abuse 
of  its  franchise,  judicially  ascertained  by  proceedings  in  quo 
warranto  or  scire  facias.  This  mode  of  dissolution  proceeds 
upon  the  doctrine,  well  settled  as  to  private  corporations,  both 
in  England  and  in  this  country,  and,  perhaps,  settled  in  that 
country,  also,  as  respects  the  old  municipal  corporations  when 
created  by  royal  charter,  that  there  is  a  tacit  or  implied  con- 
dition annexed  to  the  grant  of  every  act  or  charter  of  incor- 
poration, that  the  grantees  shall  not  neglect  to  use,  or  misapply 
the  powers  granted,  and  that  if  they  do,  the  condition  is 
broken  upon  which  the  corporation  was  created,  and  the  cor- 
poration thereupon  ceases  to  ,exist.     And  in  the  cases  in  the 

East,  17.  In  Rex  v.  Passmore,  2  Term  R.  241,  where  the  subject  was  much 
considered,  Lord  Kenyon  observed,  when  an  integral  part  of  a  corporation 
is  gone,  without  whose  existence  the  functions  of  the  corporation  cannot 
be  exercised,  and  the  corporation  has  no  manner  of  supplying  the  integral 
part,  the  corporation  is  dissolved  as  to  certain  purposes.  But  the  king  may 
renovate  either  with  the  old  or  new  corporators.  , 

The  leading  authorities  respecting  the  effect  of  the  loss  of  an  integral  part 
are,  1  Rol.  Abr.  514;  Regina.  v.  Bewdley,  1  P.  Wms.  207;  Banbury  Case,  10 
Mod.  346;  Rex  v.  Tregony,  8  Mod.  129;  Colchester  v.  Seaber,  3  Burr.  1870; 
S.  C.  1  Wm.  Bl.  591,  which,  however,  is  said  not  to  be  a  case  of  the  loss  of 
an  integral  part,  but  of  magistrates;  Grant,  Corp.  305,  note;  Rex  v.  Pass- 
more,  3  Term  R.  241.  The  foregoing  cases  are  succinctly  stated  by  Mr. 
Kyd,  2  Corp.  Ch.  5.  See,  also,  Mayor,  &c.  of  Colchester  v.  Brooke,  2 
Queen's  B.  383,  and  Mr.  Justice  Campbell's  learned  opinion  in  Bacon  v. 
Robertson,  18  How.  (U.  S.)  480,  1855 ;  People  v.  Wren,  4  Scam.  275,  citing 
and  relying  on  Colchester  v.  Seaber,  supra;  Smith's  Case,  4  Mod.  53 ;  Smith 
■o.  Smith,  3  Dessaus.  (S.  C.)  557;  Welch  v.  Ste.  Genevieve,  1  Dillon  C.  C.  130; 
chapters  on  Corporate  Officers  and  Corporate  Meetings,  post. 

1  Rex  v.  Osbourne,  4  East,  326;  Rex  v.  Miller,  6  T.  R.  277;  Willc.  332,  pi. 
861 ;  Howard's  Case,  Hutt.  87 ;  Grant  on  Corp.  306,  308 ;  Thicknesse  v.  Canal 
Co.  4  M.  &  W.  472. 


CH.  VII.]        DISSOLUTION   OF   MUNICIPAL   CORPORATIONS.  153 

time  of  Charles  II.  it  was  held,  that  the  corporation  might 
forfeit  its  franchise  hy  reason  of  the  neglect  or  misconduct  of 
its  officers.1 

In  the  United  States. 

§  110.  These  various  modes  of  dissolution,  except  the  first, 
are  believed  hy  the  author  to  he  inapplicable  to  municipal 
corporations  in  this  country  as  they  are  generally  created  and 
constituted.  Here  it  is  the  people  of  the  locality  who  are  erect- 
ed into  a  corporation,  not  for  private,  but  for  public,  purposes. 
The  corporation  is  mainly  and  primarily  an  instrument  of 
government.  The  officers  do  not  constitute  the  corporation, 
or  an  integral  part  of  it.  The  existence  of  the  corporation 
does  not  depend  upon  the  existence  of  oflicers.  The  qualified 
voters  or  electors  have,  indeed,  the  right  to  select  oflicers,  but 
they  are  the  mere  agents  or  servants  of  the  corporation,  and 
hence  the  doctrine  of  a  dissolution  by  the  loss  of  an  integral 
part  has,  in  such  cases,  no  place.  If  all  the  people  of  the  de- 
fined locality  should  wholly  remove  from  or  desert  it,  the  cor- 

1  1  Blacks.  Com.  485;  2  Kyd,  447;  Willc.  Chap.  VII.  325,  et  seq.;  Taylors 
of  Ipswich,  1  Rol.  5;  Rex  v.  Grosvenor,  7  Mod.  199;  Smith's  Case,  4  Mod. 
55,  58;  S.  C.  12  Mod.  17;  Skin.  311;  1  Show.  278;  Rex  e.  Saunders,  3  East, 
119;  Mayor,  &c.  of  Lyme  ».  Henley,  2  CI.  &  F.  331;  Rex  ».  Kent,  13  East, 
220 ;  Priestley  v.  Foulds,  2  Scott  N.  R.  205,  225 ;  Attorney  General  v.  Shrews- 
bury, 6  Beav.  220.  The  American  cases  relating  to  the  dissolution  of  private 
corporations  by  forfeiture  of  their  charters;  what  will  constitute  sufficient 
ground  of  forfeiture ;  and  the  mode  of  proceeding  to  ascertain  and  enforce 
the  forfeiture,  are  collected,  and  the  result  very  clearly  and  satisfactorily 
stated,  in  Angell  &  Ames  on  Corporations,  Chap.  XXII.  See,  also,  2  Kent 
Com.  305.  Private  corporations  may  lose  their  legal  existence,  1.  By  the 
act  of  the  legislature;  2.  By  the  death  of  all  of  their  members;  3.  By  a  for- 
feiture of  their  franchises ;  and  4.  By  a  surrender  of  their  charter.  No 
other  mode  of  dissolution  is  anywhere  alluded  to.  Boston  Glass  Manuf.  v. 
Langdon,  24  Pick.  49,  52,  per  Morton,  J. ;  Commonwealth  v.  Union  Ins.  Co.  5 
Mass.  230,  232;  Riddle  v.  Locks  and  Canals,  7  Mass.  169;  School  n.  Canal 
&c.  Co.  9  Ohio,  203 ;  Canal  Go.  v.  Railroad  Co.  4  Gill  &  Johns.  1 ;  Vincenne  s 
University  v.  Indiana,  14  How.  268. 

Mr.  Grant,  in  his  work  on  Corporations,  considers  it  doubtful  whether 
an  information  in  the  nature  of  quo  warranto  will  lie,  in  England,  against 
parliamentary  or  statute  corporations,  for  usurping  powers  not  given,  or 
misusing  those  conferred  (Corp.  307,  308) ;  but  in  this  country,  the  law  as 
to  private  corporations  is  indisputably  settled,  that  in  such  cases  an  in- 
formation may  be  brought.  ,  '': 
20 


154  MUNICIPAL   CORPORATIONS.  [CH.  VII. 

poration  would,  from  necessity,  be  suspended  or  dormant,  or, 
perhaps,  entirely  cease ;  but  the  mere  neglect  or  mere  failure 
to  elect  officers  will  not  dissolve  the  corporation,  certainly  not 
while  the  right  or  capacity  to  elect  remains.1  In  this  respect 
municipal  corporations  resemble  ordinary  private  corporations, 
which  exist  per  se,  and  consist  of  the  stockholders,  who  com- 
pose the  company.  The  officers  are  their  agents,  or  servants, 
but  do  not  constitute  an  integral  part  of  their  corporation,  the 
failure  to  elect  whom  may  suspend  the  functions,  but  will  not 
dissolve  the  corporation.2 

§  111.  Since  all  of  our  charters  of  incorporation  come  from 
the  legislature,3  there  can  be  no  dissolution  of  a  municipal  cor^ 
poration  by  a  surrender  of  its  franchise.  The  state  creates  such 
corporations  for  public  ends,  and  they  will  and  must  continue 

1  Willc.  Chap.  VII.  and  observations  at  pp.  325, 326,  327,  pi.  852;  Colches- 
ter v.  Seaber,  3  Burr.  1866 ;  Colchester  v.  Brooke,  7  Queen's  B.  383 ;  Bex  v. 
Passmore,  3  Term  R.  241 ;  Grant  on  Corp.  308 ;  Bacon  v.  Robertson,  18 
How.  480 ;  Lowber  v.  Mayor,  &c.  of  New  York,  5  Abb.  325 ;  Clarke  v.  Roch- 
ester, ib.  107;  Welch  v.  Ste.  Genevieve,  1  Dillon,  C.  C.  130,  1871.  That  the 
failure  to  elect  officers  does  not  dissolve,  while  the  capacity  to  elect  remains. 
See,  also,  Phillips  v.  Wickam,  1  Paige  Ch.  59;  Commonwealth  v.  Cullen,  1 
Harris  (Pa.),  133;  President  v.  Thompson,  20  111.  197  ;  Rose  «.  Turnpike  Co. 
3  Watts  (Pa.),  46 ;  People  v.  Wren,  4  Scam.  (111.)  275;  Brown  v.  Insurance 
Co.  3  La.  An.  177 ;  Welch  v.  Ste.  Genevieve,  supra ;  Green  Township,  9 
Watts  &  S.  (Pa.)  28 ;  Vincennes  University  v.  Indiana,  14  How.  268 ;  Mus- 
catine Turnverein  v,  Punck,  18  Iowa,  469.  In  Lea  i).  Hernandez,  10  Texas, 
137,  1853,  it  appeared  that  a  place  was  incorporated  as  a  town  prior  to  1848, 
that  in  the  year  just  named  the  legislature  passed  an  act  to  incorporate  the 
town,  and  that  no  election  for  officers  nor  any  organization  was  had  there- 
under for  three  years  and  down  to  the  commencement  of  the  action,  nor 
were  there  any  officers  de  facto  acting.  The  court  held  that  the  failure  to 
elect  officers  operated  to  dissolve  the  corporation,  there  being  no  express 
provision  of  the  charter  to  the  contrary.  But  no  authorities  are  cited  and 
no  reasons  given,  and  the  conclusion  that  an  actual  dissolution  of  the  cor- 
poration resulted  from  a  failure  to  elect,  is  believed  to  be  unsound. 

The  existence  of  a  municipal  corporation  is  not  considered  to  be  inter- 
rupted in  consequence  of  a  change  in  the  council.  Elmendorf  v.  Ewen,  N.  Y. 
Leg.  Obs.  85 ;  Elmendorf  v.  Mayor,  &c.  of  New  York,  25  Wend.  693.  Fur- 
ther, see  chapters  relating  to  Corporate  Officers  and  Corporate  Meetings, 
post. 

2  Angell  &  Ames  on  Corp.  Sec.  771,  and  cases  there  cited ;  People  v.  Fair- 
bury,  51  111.  149,  1869. 

3  Ante,  p.  52,  Sec.  17 ;  p.  62,  Sec.  22 ;  p.  71,  Sec.  30. 


CH.  VII.]         DISSOLUTION   OF   MUNICIPAL   CORPORATIONS.  155 

until  the  legislature  annuls  or  destroys  thorn,  or  authorizes  it 
to  be  done.  If  there  could  be  such  a  thing  as  a  surrender,  it 
would,  from  necessity,  have  to  be  made  to  the  legislature,  and 
its  acceptance  would  have  to  be  manifested  by  appropriate 
legislative  action. 

§  112.  The  doctrine  of  a  forfeiture  of  the  right  to  be  a  cor- 
poration has  also,  it  is  believed  by  the  author,  no  just  or  proper 
application  to  our  municipal  corporations.1  If  they  neglect  to 
use  powers  in  which  the  public  or  individuals  have  an  interest, 
and  the  exercise  of  such  powers  be  not  discretionary,  the 
courts  will  interfere  and  compel  them  to  do  their  duty.2  On 
the  other  hand,  acts  done  beyond  the  powers  granted  are  void.3 
If  private  rights  are  threatened  or  invaded,  the  courts  will, 
as  hereafter  shown,  restrain  or  redress  the  injury.4  "With 
what  surprise  would  we  hear  of  a  proceeding  to  forfeit  the 
charter  of  the  city  of  New  York  or  Chicago  because  of  the  mis- 
conduct of  their  officers,  or  because  the  common  council,  as  in 
the  famous  case  against  the  city  of  London,  were  assuming  to 
exercise  unauthorized  powers  by  ordaining  an  oppressive  by- 
law. In  short,  unless  otherwise  specially  provided  by  the  leg- 
islature, the  nature  and  constitution  of  our  municipal  corpora- 
tions, as  well  as  the  purposes  they  are  designed  to  subserve,  are 
such  that  they  can,  in  the  author's  judgment,  only  be  dissolved 
by  the  consent  of  the  legislature.  They  may  become  inert,  or 
dormant,  or  their  functions  may  be  suspended,  for  want  of 
officers  or  of  inhabitants,  but  dissolved  when  created  by  an  act 
of  the  legislature,  and  once  in  existence,  they  cannot  be,  by 
reason  of  any  default,  or  abuse  of  the  powers  conferred,  either 
on  the  part  of  the  officers  or  inhabitants  of  the  incorporated 
place.  As  they  can  exist  only  by  legislative  sanction,  so  they 
cannot  be  dissolved  or  cease  to  exist  except  by  legislative 
consent. 

1  See  Welch  v.  Ste.  Genevieve,  1  Dillon,  C.  C.  130, 1871,  arguendo. 
1  Ante,  Chap.  V.  p.  110,  Sec.  62;  poet,  chapter  on  Mandamus. 

3  Ante,  p.  151,  Sec.  55,  and  notes. 

4  See  chapter  on  Remedies  to  Prevent,  Correct,  and  Redress  Illegal  Cor-, 
porate  Acts,  post. 


156  MUNICIPAL   CORPORATIONS.  [CH.  VII. 

Effect  of  Dissolution. 

§  113.  At  common  law,  a  corporation,  dt  whatever  kind, 
which  was  wholly  dissolved,  was  considered  to  be  civilly  dead ; 
and  the  effect  was,  that  their  lands  reverted  to  the  grantor  or 
his  heirs,  and  the  debts  of  the  corporation,  whether  owing  to 
or  by  it,  were  extinguished.  Leases  made  by  the  corporation 
would  cease  because  of  the  reversion  of  the  lands  to  the  origi- 
nal owners ;  and,  for  the  same  reason,  lands  given  to,  or  held 
by,  the  corporation  for  charitable  purposes  would  be  lost.1 
These  inconveniences  and  results  are  so  disastrous  that  the 
English  courts,  as  the  more  recent  cases  before  cited  will  show, 
have  doubted  and  limited,  although  they  may  not  have  over- 
thrown the  doctrine  that  municipal  corporations  may  be  totally 
dissolved.  These  consequences  of  a  dissolution  of  a  corpora- 
tion attached  to  all  corporations,  eleemosynary,  municipal,  and 
private;  and  since  this  doctrine  has,  in  this  country,  been 
generally  rejected  as  to  private  corporations  organized  for  pe- 
cuniary profit,  and  rests  upon  no  foundation  in  reason  or 
justice,  it  may,  perhaps,  be  safely  affirmed  that  it  would  not, 
on  full  consideration,  be  applied  to  the  dissolution  of  a  muni- 
cipal corporation  by  an  absolute  and  unconditional  repeal  of 
its  charter,  or  (if  that  may  be  done)  to  the  case  where  the 
charter  of  such  a  corporation  is  forfeited  by  judicial  sentence. 
Therefore,  the  leases  of  a  corporation  would  not  be  disturbed 
by  its  dissolution,  nor  would  their  lands  held  in  fee  revert, 
nor  would  those  held  in  trust  for  charitable  purposes  be  lost, 
since  equity  would  supply  trustees.2 

1  Co.  Litt.  13 ;  1  Lev.  237 ;  Knight  v.  Wells,  1  Lut.  519 ;  Rex  v.  Sanders,  3 
East,  119 ;  Attorney  General  v.  Gower,  9  Mod.  226 ;  1  Rol.  Abr.  816  ;  Col- 
chester v.  Seaber,  3  Burr.  1866 ;  Willc.  330,  pi.  858 ;  2  Kyd,  516 ;  Rex  v.  Pass- 
more,  3  Term  R.  247  ;  Grant,  Corp.  305 ;  Colchester  v.  Brooke,  7  Queen's  B. 
383 ;  Commonwealth  v.  Roxbury,  9  Gray,  510,  note. 

2  Ante,  p.  81,  Sec.  37 ;  p.  93,  Sec.  47 ;  chapters  on  Corporate  Boundaries 
and  Property,  post.  Bacon  v.  Robertson,  18  How.  (U.  S.),  480,  1855  ;  Girard 
v.  Philadelphia,  7  Wall.  1, 1868 ;  Mumma  v.  Potomac  Company,  8  Pet.  281, 
1834 ;  Curran  v.  Arkansas,  15  How.  (U.  S.)  312 ;  2  Kent,  307,  note ;  Angell 
&  Ames,  Corp.  779  a  ;  Coulter  v.  Robertson,  24  Miss.  278 ;  County  Commis- 
sioners v.  Cox,  6  Ind.  403 ;  State  v.  Trustees,  &c.  5  Ind.  77 ;  Vincennes 
University  v.  Indiana,  14  How.  268 ;  Owen  v.  Smith,  31  Barb.  641 ;  Com- 
monwealth v.  Roxbury,  9  Gray,  510,  note.  The  general  subject  of  the  effect 
of  a  dissolution  of  a  corporation  is  extensively  discussed  by  Mr.  Justice 


CH.  VII.]         DISSOLUTION    OF    MUNICIPAL   CORPORATIONS.  157 

§  114.  As  respects  the  creditors  of  a  municipal  corporation, 
their  rights  are  protected  from  legislative  invasion  by  the  Con- 
stitution of  the  United  States,  and  no  repeal  of  a  charter  of 

Campbell,  in  Bacon  v.  Robertson,  supra.  The  case  was  a  bill  in  chancery  by 
the  stockholders  of  a  bank,  whose  charter  had  been  judicially  forfeited,  for 
a  distribution  of  the  surplus  after  the  payment  of  the  debts,  and  the  relief 
was  granted.  The  Supreme  Court  of  the  United  States  seemed  to  be  of 
opinion  that,  upon  the  general  principles  of  equity  jurisprudence,  and  without 
statutory  aid,  the  surplus  of  the  assets  of  a  corporation  for  pecuniary  profit, 
after  the  payment  of  debts  and  expenses,  belonged  to  the  shareholders ; 
that  the  creditor  of  such  a  corporation,  dissolved  or  declared  forfeited  by 
judgment  upon  quo  warranto  or  judicial  sentence,  has,  without  a  statute  to 
that  effect,  a  claim  in  equity  upon  the  corporate  property  for  the  satisfac- 
tion of  his  debt ;  that  lands  conveyed  to  the  corporation  in  fee  and  for  a 
full  price  do  not  revert,  and  that  the  stockholder,  as  to  the  surplus  after 
paying  the  debts,  stands  upon  grounds  as  high  and  has  claims  as  irresistible 
as  the  creditor  before  had.  The  usual  consequences  of  a  dissolution,  as 
stated  by  the  text  writers,  if  correct,  which  was  doubted,  were  deemed  in- 
applicable to  moneyed  or  trading  corporations. 

In  the  course  of  his  admirable  opinion,  the  learned  justice  named  ob- 
served :  "  The  common  law  of  Great  Britain  was  deficient  in  supplying  the 
instrumentalities  for  a  speedy  and  just  settlement  of  the  affairs  of  an  in- 
solvent corporation  whose  charter  had  been  forfeited  by  judicial  sentence. 
The  opinion  usually  expressed  as  to  the  effect  of  such  a  sentence  was  un- 
satisfactory and  questioned.  There  had  been  instances  in  Great  Britain  of 
the  dissolution  of  public  or  ecclesiastical  corporations  by  the  exertion  of 
public  authority,  or  as  a  consequence  of  the  death  of  their  members,  and 
parliament  and  the  courts  had  affirmed,  in  these  instances,  that  the  endow- 
ments they  had  received  from  the  prince  or  pious  founders  would  revert  in 
such  a  case.  Stat,  de  terris  Templariorum,  17  Edw.  II. ;  Dean  and  Canons  of 
Windsor,  Godb.  211 ;  Johnson  v.  Norway,  Winch.  37 ;  Owen,  73  ;  6  Vin. 
Abr.  280.  What  was  to  become  of  their  personal  estate,  and  of  their  debts 
and  credits,  had  not  been  settled  in  any  adjudicated  case,  and,  as  was  said 
by  Pollexfen  in  the  argument  of  the  quo  warranto  against  the  city  of  Lon- 
don, was,  perhaps,  "  non  definitur  in  jure."  [See,  ante,  p.  14.]  Solicitor 
Finch,  who  argued  for  the  crown  in  that  cause,  admitted :  "  I  do  not  find 
any  judgment  in  a  quo  warranto  of  a  corporation  being  forfeited."  Treby, 
on  behalf  of  the  city,  said :  "  The  dissolving  a  corporation  by  a  judgment 
in  law,  as  is  here  sought,  I  believe  is  a  thing  that  never  came  within  the 
compass  of  any  man's  imagination  till  now  ;  no,  not  so  much  as  the  putting 
of  a  case.  For  in  all  my  search  (and  upon  this  occasion  I  have  bestowed  a 
great  deal  of  time  in  searching)  I  cannot  find  that  it  even  so  much  as  en- 
tered into  the  conception  of  any  man  before  ;  and  I  am  the  more  confirmed 
in  it  because1  so  learned  a  gentleman  as  Mr.  Solicitor  has  not  cited  any 
one  such  case  wherein  it  has  been  (I  do  not  say  adjudged,  but)  even  so 
much  as  questioned  or  attempted ;  and,  therefore,  I  may  very  boldly  call 
this  a  case  primie  impressionis."  The  argument  of  Pollexfen  was  equally 
positive. 


158  MUNICIPAL   CORPORATIONS.  [CH.  VII. 

a  municipal  corporation  can  so  dissolve  it  as  to  impair  the  obli- 
gation of  the  contract,  or,  it  may  probably  be  safely  added, 
preclude  the  creditor  from  recovering  his  debt.1 

The  power  of  courts  to  adjudge  a  forfeiture  so  as  to  dissolve  a  corporation 
was  affirmed  in  that  case,  but  the  effect  of  that  j  udgment  was  not  illustrated 
by  any  execution,  and  the  courts  were  relieved  from  their  embarrassment 
by  an  act  of  parliament  annulling  it.  Smith's  Case,  4  Mod.  53 ;  Skin.  310 ; 
8  St.  Trials,  1042,  1052,  1283.  Nor  have  the  discussions  since  the  revolution 
extended  our  knowledge  upon  this  intricate  subject.  The  case  of  Rex  v. 
Amery,  2  Durn.  &  E.  515,  has  exerted  much  influence  upon  text  writers. 
The  questions  were,  whether  a  judgment  of  seizure  quosque  upon  a  default 
was  final,  and,  if  so,  whether  the  king's  grant  of  pardon  and  restitution 
would  overreach  and  defeat  a  charter  granting  to  a  new  body  of  men  the 
same  liberties,  intermediate  the  seizure  and  the  pardon.  The  king's  bench, 
relying  upon  the  Year-Book,  discovered  that  it  did  not  support  the  conclu- 
sion drawn  from  it,  and  Chief  Baron  Eyre  says  that  "  Lord  Coke  had  adopt- 
ed the  doctrine  too  hastily."  The  discussions  upon  this  case  show  how 
much  the  knowledge  of  the  writ  of  quo  warranto,  as  it  had  been  used  and 
applied  under  the  Plantagenets  and  Tudors,  had  gone  from  the  memories 
of  courts  and  lawyers.  4  Durn.  &  E.  122 ;  Tan.  on  Quo  War.  24.  In  Col- 
chester v.  Seaber,  3  Burr.  1866,  where  the  suit  was  upon  a  bond,  and  the 
defence  was,  that  certain  facts  had  occurred  to  dissolve  the  corporation,  and 
that  the  creditor's  claim  was  extinguished  on  the  bond,  Lord  Mansfield 
said,  "  Without  an  express  authority,  so  strong  as  not  to  be  gotten  over,  we 
ought  not  to  determine  so  much  against  reason  as  that  parliament  should 
be  obliged  to  interfere."  The  question  occurs  here,  Could  parliament  in- 
terfere? And  the  answer  would  be,  by  their  authorizing  a  suit  to  be 
brought,  notwithstanding  the  dissolution.  These  are  all  cases  of  municipal 
corporations  where  the  corporators  had  no  rights  in  the  property  of  the 
corporation  in  severalty." 

1  Ante,  Chap.  IV.  passim  ;  particularly  p.  86,  Sec.  41 ;  Cooley,  Const.  Lim. 
290,  292 ;  Curran  v.  Arkansas,  15  How.  (U.  S.)'  312 ;  Bacon  v.  Bobertson, 
supra;  2  Kent  307,  note;  County  Commissioners  v.  Cox,  6  Ind.  403;  State 
v.  Trustees,  5  Ind.  77 ;  Coulter  v.  Boberson,  24  Miss.  278 ;  Gelpcke  v.  Du- 
buque, 1  Wall.  175, 1865 ;  Van  Hoffman  v,  Quincy,  4  Wall.  535 ;  Welch  v. 
Ste.  Genevieve,  1  Dillon,  C.  C.  130  ;  Thompson  v.  Lee  County,  3  Wall.  327 
Havemeyer  v.  Iowa  County,  3  Wall.  294 ;  Butz  v.  Muscatine,  8  Wall.  575 
Lansing  v.  Treasurer,  &c.  1  Dillon,  C.  C.  522 ;  Soutter  v.  Madison,  15  Wis.  30 
Smith  v.  Appleton,  19  Wis.  468;  Blake  v.  Railroad  Co.  39  N.  H.  435.  The 
dissolution  of  a  private  corporation  by  authorized  legislative  act,  or  judicial 
sentence,  does  not  impair  the  obligation  of  a  contract  any  more  than  the 
death  of  a  private  person  impairs  the  obligation  of  his  contract.  This  doc- 
trine was  based  upon  two  grounds :  First,  the  obligation  survives,  and  the 
creditors  may  enforce  their  claims  against  any  property  belonging  to  the 
corporation  which  has  not  passed  into  the  hands  of  bona  fide  purchasers ; 
second,  every  creditor  is  presumed  to  contract  with  reference  to  a  possi- 
bility of  a  dissolution  of  the  corporate  body.    Mumma  v.  Potomac  Company 


CH.  VII.]        DISSOLUTION   OF   MUNICIPAL   CORPORATIONS.  159 

§  115.  The  name  of  an  incorporated  place  may  be  changed, 
its  boundaries  enlarged  or  diminished,  and  its  mode  of  govern- 
ment altered,  and  yet  the  corporation  not  be  dissolved,  but  in 
law  remain  the  same.1 

§  116.  Where  the  functions  of  an  old  corporation  are  super- 
seded, or  where  the  corporation,  by  loss  of  all  its  members,  or 
of  an  integral  part,  is  dissolved  as  to  certain  purposes,  it  may 
be  revived  by  a  new  charter,  and  the  rights  of  the  old  corpora- 
tion be  granted  over  to  the  same,  or  a  new  set  of  corporators, 
who,  in  such  case,  take  all  the  rights,  and  are  subject  to  all  the 
liabilities,  of  the  old  corporation,  of  which  it  is  but  a  continua- 
tion.2 

(holding  that  on  sci.  fa.  a  judgment  could  not  be  revived,  or  costs  adjudged, 
•against  a  corporation  legislatively  annulled),  8  Pet.  (U.  S.)  281,  1834.  In  the 
case  of  the  town  of  Port  Gibson  v.  Moore,  13  Sm.  &  Marsh,  157,  1849,  it  was 
held,  indeed,  that  the  repeal  of  the  charter  of  an  indebted  municipal  corpo- 
ration dissolved  it ;  that  such  dissolution  extinguished  debts  to  and  from  the 
corporation,  and  that  a  subsequent  act  re-incorporating  the  place  did  not 
make  it  liable  for  a  debt  existing  anterior  to  the  act  repealing  its  charter. 
The  court  overlooked  the  constitutional  provision  protecting  contracts,  and 
the  case  as  to  the  effect  of  a  dissolution  upon  the  rights  of  creditors  seems 
to  conflict  with  those  above  cited.  See  further,  as  to  extinguishment  of 
debts  by  dissolution  of  corporation :  Mallory  v.  Mallett,  6  Jones,  Eq.  345 ; 
Hopkins  v.  Whitesides,  1  Head  (Tenn.),  31 ;  Bank  v.  Lockwood,  2  Harring. 
(Del.)  8 ;  Robinson  v.  Lane,  19  Geo.  337  ;  Muscatine  Turnverein  v.  Funck, 
18  Iowa,  469  ;  Owen  v.  Smith,  31  Barb.  641 ;  Welch  v.  Ste.  Genevieve,  1  Dil- 
lon, C.  C.  130. 

1  Ante,  p.  98,  Sec.  52,  and  cases  cited  ;  post,  Chap.  VIII.  and  see  ante,  Chap. 
IV.,  where  the  extent  of  the  legislative  authority  over  municipal  corpora- 
tions is  considered. 

"  Rex  v.  Passmore,  3  Term  R.  119,  247 ;  Regina  o.  Bewdley,  1  P.  Wms.  207 ; 
Colchester  v.  Brooke,  7  Queen's  Bench,  383 ;  Colchester  v.  Seaber,  3  Burr. 
1866 ;  Grant  on  Corporations,  304  and  note ;  2  Kyd,  516.  Whether  a  statute 
or  legislative  charter  will  operate  to  revive  or  continue  an  old,  or  to  create 
a  new  and  distinct  corporation,  depends  upon  the  intention  of  the  legisla- 
ture. Ante,  Chap.  V. ;  Bellows  v.  Bank,  &c.  2  Mason,  C.  C.  43,  per  Story,  J. ; 
Angell  &  Ames,  Sec.  780 ;  Grant  on  Corporations,  304,  305 ;  Hoffman  v.  Van 
Nostrand,  42  Barb.  174 ;  Girard  v.  Philadelphia,  7  Wall.  1 .;  Olney  v.  Harvey, 
50  111.  453,  1869. 


160  MUNICIPAL   CORPORATIONS.  [CH.  VIII. 

CHAPTER  VIII. 

Corporate  Name,  Boundaries,  and  Seal. 

Corporate  Name. 

§  117.  Every  corporation  must  have  a  name.  This  is  essen- 
tial to  distinguish  it  from  other  corporations.  In  England, 
before  the  Municipal  Corporations  Act  of  5  and  6  "Will.  IV. 
Chap.  LXXVI.  1835,1  such  corporations  obtained  their  name 
by  having  it  expressed  in  their  charter  (whether  royal  or  parlia- 
mentary), or  by  usage  or  by  implication.2  If  a  particular 
name  be  given  to  a  corporation  in  its  charter,  the  corporation 
can  no  more  change  it  at  its  pleasure  than  a  man  can  at  pleas- 
ure change  his  baptismal  name.  If  no  name  be  given  to  a  cor- 
poration by  its  charter  or  by  statute,  it  may  obtain  one  by  im- 
plication. Where  a  corporation  exists  by  prescription,  it  may 
have  more  than  one  name,  but  the  names,  to  be  recognized  as 
valid,  must  be  prescriptive,  and  cannot  be  acquired  by  usage 
within  the  time  of  memory.  It  has  been  decided,  in  England, 
that  a  corporation  may  have  one  name  by  prescription  and 
another  by  grant;  but  it  is  said  that  the  same  corporation  can- 
not, at  the  same  time,  have  two  different  names  by  different 
grants,  for  the  name  in  the  last  grant  will  take  the  place  of  the 
other.3 

§  118.  But  the  Municipal  Corporations  Act,  just  mentioned, 
which  changed  the  corporate  constitution  of  the  cities,  towns, 
and  boroughs  of  England  and  Wales,  and  reduced  them  to  an 

1  Ante,  pp.  47-51,  and  note. 

'*  Glover,  52,  53 ;  Willc.  35 ;  Grant,  50 ;  ante,  p.  60.  As  to  usage,  see,  ante, 
Chap.  V.  p.  105. 

3  Knight  v.  Wells,  1  Ld.  Raym.  80 ;  Physicians  v.  Salmon,  3  Salk.  102 ; 
Com.  Dig.  Franch.  F.  9  ;  per  Holt,  1  Salk.  191 ;  1  Str.  614 ;  Smith  v.  Railroad 
Company,  30  Ala.  650,  1857.  See,  also,  All  Saints  Church  v.  Lovett,  1  Hall 
(N.  Y.),  191 ;  Manufacturing  Company  v.  Davis,  14  Johns.  238;  Middlesex, 
&c.  v.  Davis,  3  Md.  133 ;  Trustees  v.  Peaslee,  15  N.  H.  317 ;  Society,  &c.  v. 
Young,  2  N.  H.  310. 


CH.  VIII.]  CORPORATE    NAME.  161 

uniform  model,  made  this  provision  as  the  name  of  the  cor- 
poration, under  the  new  act :  "  Said  hody,  or  reputed  body, 
corporate  shall  take  and  bear  the  name  of  the  mayor,  aldermen, 
and  burgesses  of  such  borough,  and  by  that  name  shall  have 
perpetual  succession,  and  shall  be  capable,  in  law,  by  the  coun- 
cil hereinafter  mentioned  of  such  borough,  to  do  and  suffer  all 
acts  which  now  lawfully  they  and  their  successors  may  do  and 
suffer,  by  any  name  or  title  of  incorporation,  so  far  as  not 
altered  or  annulled  by  the  provisions  of  this  act."1  It  is 
settled  by  the  decisions  under  this  act  that  the  true  or  proper 
corporate  name  for  boroughs  mentioned  in  it  is  "mayor,  alder- 
men, and  burgesses  of  the  borough  of ,"  and  (under  the 

interpretation  clause,  Sec.  142  of  the  act),  for  cities,  "  mayor, 

aldermen,  and  citizens  of  the  city  of ."2    It  may  also  be 

here  observed  that  the  courts  have  determined  that,  though 
this  act  changed  the  name  and  made  new  and  important  alter- 
ations in  the  constitution  of  the  corporations,  yet  that  its  effect 
was  not  in  any  case  to  create  a  new  corporation,  but  to  continue 
the  old,  with  all  their  rights,  privileges,  and  franchises,  except 
so  far  as  inconsistent  with  the  provisions  of  the  act.3  But  the 
name  mentioned  in  the  act  would  doubtless  govern,  and  by 
that  they  would  have  to  sue  and  be  sued. 

§  119.     Charters  granted  by  legislative  enactment,  in  this 
country,  almost  invariably  prescribe  the  name  of  the  corporate 

body  thus :  "  The  inhabitants  of  the  city  or  town  of are 

hereby  constituted  a  body  politic  and  corporate,  by  the  name 

and  style  of 'city  of ,'  or 'town  of .'"*    So  the 

general  municipal  incorporation  acts  usually  contain  a  pro- 
vision to  the  effect  that  "  cities  and  towns  organized  or  to  be 

1  5  and  6  Will.  IV.  Chap.  LXXVI.  Sec.  6 ;  ante,  p.  51,  and  note. 

2  Attorney  General  «.  Corporation  of  Worcester,  2  Phillips,  3 ;  Corpora- 
tion of  Rochester  i.  Lee,  15  Sim.  376  ;  Grant,  342 ;  Rawlinson,  13. 

8  Corporation  of  Ludlow  v.  Tyler,  7  Car.  and  P.  537 ;  Attorney  General  v. 
Wilson,  9  Sim.  30,48;  Attorney  General  v.  Kerr,  2  Beav.  420,  429;  Attorney 
General  n.  Corporation  of  Leicester,  9  Beav.  46 ;  Doe,  &c.  v.  Norton,  11  M.  & 
W.  913,  928.  Parke,  B.,  there  said,  "  though  the  name  and  style  of  the  cor- 
poration, and  the  mode  of  electing  members  were  changed,  the  identity  of 
the  body  itself  was  not  affected."    Ante,  Chap.  VII.  Sec.  116. 

*  Ante,  p.  56,  Sec.  19. 
21 


162  MUNICIPAL   CORPORATIONS.  [CH.  VIII. 

organized  thereunder,  are  declared  to  be  bodies  politic  and  cor- 
porate, under  the  name  and  style  of  the  city  of ,  or  town 

of ,  as  the  case  may  be,"  &c.      Where  such  an   act 

authorized  any  existing  town  or  city  to  adopt  its  provisions  in 
place  of  its  special  charter,  and  was  silent  as  to  the  corporate 
name  after  the  change  was  made,  it  was  held  that  the  former 
name  was  retained.' 

§  120.  Where  a  name  is  given  to  a  municipal  corporation  by 
charter  or  statute,  this  cannot  be  changed  by  the  act  of  the  cor- 
poration.2 But,  in  this  country,  general  statutes  are  not  unfre- 
quent,  authorizing  the  creation  of  quasi  corporations,  without 
making  it  necessary  to  designate  the  name  by  which  a  particu- 
lar district  shall  be  called  ;  in  such  case  it  may  acquire  a  name 
by  reputation,  and  sue  and  be  sued  by  such  name.3 

§  121.  A  misnomer,  or  variation  from  the  precise  name  of 
of  the  corporation,  in  a  grant  or  obligation  by  or  to  it,  is  not  ma- 
terial, if  the  identity  of  the  corporation  is  unmistakable,  either 
from  the  face  of  the  instrument  or  from  the  averments  and 
proof/ 

1  Johnson  v.  Indianapolis,  16  Ind.  227,  1861.  Corporate  name  of  the  city 
not  judicially  noticed :  lb.    Ante,  p.  57,  Sec.  20. 

*  Willcock,  34,  37,  38 ;  Eegina  v.  Eegistrar  Joint  Stock  Company,  10  Q.  B. 
839.  See  Episcopal,  &c.  Society  v.  Episcopal  Church,  1  Pick.  372.  Change 
of  name  does  not  necessarily  involve  a  change  of  identity :  Girard  v.  Phila- 
delphia, 7  Wall.  1.    Ante,  Chap.  VII.  Sec.  116. 

3  School  District  v.  Blakeslee,  13  Conn.  227,  1839.  As  to  quasi  corpora- 
tions, ante,  pp.  30-32,  and  note ;  post,  chapter  on  Actions. 

4  Inhabitants  v.  String,  5  Halst.  (K  J.)  323,  1829 ;  Kentucky  Seminary  v. 
Wallace,  15  B.  Mon.  35,  1854 ;  New  York  Conference  v.  Clarkson,  4  Halst. 
Ch.  541,  1851 ;  Angell  &  Ames,  Sec.  185  ;  Pendleton  v.  Bank  of  Kentucky,  1 
Mon.  177 ;  Med  way  Cotton  Manufacturing  Company  v.  Adams,  10  Mass. 
360 ;  People  v.  Love,  19  Cal.  676 ;  African  Society  v.  Varick,  13  Johns.  38 ; 
Woolrich  v.  Forrest,  1  Pa.  115 ;  Bower  v.  State  Bank,  5  Ark.  234 ;  Pierce  v. 
Somerworth,  10  N.  H.  369 ;  Douglas  v.  Branch  Bank,  &c.  19  Ala.  659. 

"  The  general  rule  to  be  collected  from  the  cases  is,"  says  Chancellor  Kent, 
"  that  a  variation  from  the  precise  name  of  the  corporation,  when  the  true 
name  is  necessarily  to  be  collected  from  the  instrument,  or  is  shown  by- 
proper  averments,  will  not  invalidate  a  grant  by  or  to  a  corporation,  or  a 
contract  with  it,  and  the  modern  cases  show  an  increased  liberality  on  this 
subject :  "  2  Com.  292 ;  approved,  St.  Louis  Hospital  1>.  Williams,  Adminis- 
trator, 19  Mo.  609,  1854.    "We  adopt  the  more  reasonable  rule  laid  down  by 


CH.  VIII.]  CORPORATE    NAME.  163 

§  122.  Where  the  intention  of  the  testator  is  clear,  a  mistake  in 
the  name  or  description  of  the  object  of  his  bounty  will  not  make 
the  devise  void.  This  general  principle  is  applicable  to  all 
corporations,  private  and  public.  But  the  intention  must  be  so 
clear  as  to  remove  all  reasonable  doubt  as  to  the  corporation 
meant.  This  rule  may  be  illustrated  by  a  few  examples. 
Thus,  a  devise  to  a  college  by  its  common  name,  though  not 
the  true  corporate  name,  is  good.1  So,  where  the  deviseeR 
were  called  by  their  popular  name,  "  The  South  Parish  in  Sut- 
ton," their  legal  name  being,  "  The  First  Parish  in  Sutton," 
the  devise  was  sustained.2  So,  also,  the  "  Mayor,  Jurats,  and 
Commonalty  of  tbe  Town  of  Rye,"  that  being  the  corporate 
name,  were  held  entitled  to  lands  by  a  devise  to  "  The  Right 
Worshipful  the  Mayor,  Jurats,  and  Town  Council  of  the  Town 
of  Rye."  although  there  was  no  town  council  in  the  town,  and 
although  the  court  admitted  the  proposition  of  counsel  against 
the  will,  that  if  the  "  intent  appears  to  give  to  a  part  of  the 
corporation,  although  that  intent  fails  of  effect,  the  whole  cor- 
poration cannot  take."3  So,  also,  a  devise  to  the  Mayor, 
Chamberlain,  and  Governors,  is  valid  to  a  corporation  whose  true 
name  is  Mayor,  Citizens,  and  Commonalty.*    So,  a  legacy  may 

Mr.  Kyd  (Corp.  Vol.  I.  pp.  286,  288),  that  the  variance  must  be  materially 
different,  in  substance,  to  injure : "  Per  Chiriam,  People  v.  Eunkle,  9  Johns. 
147,  157. 

"  I  take  the  law  of  the  present  day  to  be,  that  a  departure  from  the  strict 
style  of  the  corporation  will  not  avoid  its  contracts,  if  it  substantially  appear 
that  the  particular  corporation  was  intended,  and  that  a  latent  ambiguity 
may,  under  proper  averments,  be  explained  by  parol  evidence,  in  this  as  in 
other  cases,  to  show  the  intention :  "  Per  Gibson,  J.,  in  President,  &c.  v. 
Myers,  6  Serg.  &  Rawle,  12 ;  S.  P.  Milford,  &c.  Company  v.  Brush,  10  Ohio, 
111. 

When  an  act  of  parliament  makes  a  grant  to  a  corporation,  it  takes!  effect 
though  the  true  corporate  name  be  not  used,  provided  the  corporation  in- 
tended be  sufficiently  identified  or  described :  1  Kyd,  256 ;  Chancellor  of 
Oxford's  Case,  10  Co.  44,  57  6. 

1  Chancellor  of  Oxford's  Case,  10  Co.  87  6. 

2  First  Parish  in  Sutton  ».  Cole,  3  Pick.  232,  1825,  and  cases  there  cited. 

3  Attorney  General  v.  Mayor  of  Rye,  7  Taunton,  546;  2  Eng.  Com.  Law, 
'213,1817. 

4  Owen,  35  (14  Eliz.).  "The  devise  held  good  by  Dyer,  Weston,  and  Man- 
wood,  for  it  shall  be  taken  according  to  the  intent  of  the  devisor."  See, 
also,  Connden  e.  Clerke,  Hobart,  32  ;  Croydon  Hospital  v.  Farley,  6  Taunton, 


164  MUNICIPAL   CORPORATIONS.  [CH.  VIII. 

be  given  to  a  corporation  either  by  its  corporate  name  or  by  a 
description  which  clearly  distinguishes  and  identifies  the  lega- 
tee.1 

§  123.  Where  the  name  of  the  corporation  is  expressly  de- 
fined by  charter  or  statute,  it  is  usually  provided  in  terms  that 
by  such  name  it  may  sue  and  be  sued.  In  such  case  the  true 
corporate  name  should  be  used  both  in  suits  by  and  against 
the  corporation.  A  name  in  a  grant  or  obligation  to  or  by  a 
corporation  may  be  sufficient  to  enable  the  corporation  to 
enjoy  or  to  make  it  liable,  which  would  not  be  sufficient  in  an 
action  by  or  against  it.2  If  the  name  of  a  corporation  is  law- 
fully changed,  not  the  identity  of  the  corporation  itself,  suit 
should,  in  general,  unless  provision  be  otherwise  made,  be  in 
the  new  name.3    If  a  note,  bond,  or  other  promise  be  made  to 

467 ;  1  English  Common  Law,  457,  1816,  where  Gibbs,  C.  J.,  justly  condemns 
the  absurd  nicety  of  many  of  the  decisions  from  the  reign  of  Edward  VI.  to 
the  end  of  James  I.  on  the  subject  of  the  names  and  description  of  corpo- 
rate bodies. 

1  New  York  Institute  v.  How,  10  N.  Y.  (6  Seld.)  84,  1854.  In  this  case 
the  plaintiff,  whose  corporate  name  was,  "  The  New  York  Institution  for 
the  Blind,"  was  decided  to  be  entitled  to  a  legacy  given  to  the  "  Trustees  of 
the  Institution  for  the  Maintenance  and  Instruction  of  the  Indigent  Blind," 
there  being  no  other  institution  in  the  city  of  New  York  for  the  blind.  See, 
also,  Vansant  v.  Roberts,  3  Md.  119 ;  Preachers'  Aid  Society,  45  Maine,  552 ; 
Chapin  v.  School  District,  &c.  35  N.  H.  445 ;  Minot  v.  Boston  Asylum,  7  Met. 
416.  Parol  evidence  may,  in  proper  cases,  be  received  to  identify  the  cor- 
poration intended.  Trustees  v.  Peaslee,  15  N.  H.  317 ;  Bodman  v.  Ameri- 
can Tract  Society,  9  Allen,  447. 

2  Cambridge  University  v.  Crofts,  10  Mod.  208 ;  1  Kyd,  253 ;  Willc.  37 ; 
Brittain  v.  Newland,  2  Dev.  &  Bat.  (North  Car.)  363 ;  Insane  Asylum  v.  Hig- 
gins,  15  111.  185 ;  Berks  Co.  &c.  v.  Myers,  6  Serg.  &  Eawle  (Pa.),  12 ;  Clark  v. 
Potter  Co.  1  Parr  (Pa.),  163 ;  Porter  v.  Blakely,  1  Root  (Conn.),  440;  Ken- 
tucky Seminary  v.  Wallace.  15  B.  Mon.  35 ;  Romeo  v.  Chapman,  2  Mich. 
179. 

8  Mayor,  &c.  of  Colchester,  3  Burr.  1866 ;  Regina  v.  Ipswich,  2  Ld.  Raym. 
1232,  1238 ;  Angell  &  Ames,  Sec.  644 ;  Glover,  63.  Mr.  Kyd  says :  "  Where 
a  corporation  becomes  liable  to  any  duty,  and  then  its  name  is  changed, 
the  writ  brought  against  it  should  be  in  the  new  name."  1  Corp.  288.  On 
a  merger,  by  statute,  of  a  town  into  a  city  corporation,  it  was  provided  that 
all  of  the  books,  papers,  moneys,  and  effects  of  the  former  should  vest  in 
the  latter.  Held,  that  a  suit  on  a  bond  made  to  a  town  before  the  transfer 
could  not,  afterwards,  be  instituted  in  the  name  of  the  town,  but  should  be 
brought  in  the  corporate  name  of  the  city.  Fort  Wayne  v.  Jackson,  7  Blackf. 
(Ind.)  36, 1843. 


CH.  VIII.]  CORPORATE    BOUNDARIES.  165 

a  corporation,  by  a  name  differing  from  the  corporate  name,  the 
corporation  may  sue  in  its  true  name,  and  allege  that  it  is  the 
party  to  whom  the  promise  or  obligation  was  made.1 

Corporate    Boundaries. 

§  124.  Since  the  leading  object  of  an  American  municipal 
corporation  is  to  invest  the  inhabitants  of  a  defined  locality  or 
place  with  a  corporate  existence  chiefly  for  the  purposes  of 
local  government,  it  is  obvious  that  the  geographical  limits  or 
boundaries  of  the  corporation  ought  to  be  defined  and  certain. 
These  boundaries  are  usually  described  in  the  charter  or  con- 
stituent act,  or  a  method  is  prescribed  therein,  by  which  they 
may  be  ascertained  and  settled.  Because  residence  within  the 
corporation  confers  rights  and  imposes  duties  upon  the  resi- 
dents, and  the  local  jurisdiction  of  the  incorporated  place  is, 
in  most  cases,  confined  to  the  limits  of  the  corporation,  it  is 
necessary   that  these   limits   be   definitely  fixed.2     They  are 

1  10  Co.  125  b ;  1  Kyd,  287  ;  African^Bociety  v.  Varick,  13  Johns:  38,  181 6 ; 
Trustees  v.  Eeneau,  2  Swan  (Tenn.),  94,  1852 ;  Fort  Wayne  v.  Jackson,  7 
Blackf.  (Ind.)  36,  1843.  An  allegation  that  the  defendants  acknowledged 
themselves  to  be  bound  unto  the  plaintiffs,  by  the  description,  &c,  is  equiva- 
lent to  such  an  averment.    13  Johns.  38,  supra. 

2  Cutting  v.  Stone,  7  Vt.  471 ;  Gray  «.  Sheldon,  8  ib.  402 ;  Pierce  v.  Carpen- 
ter, 10  ib.  480.  As  to  boundaries  generally,  and  construction  of  acts  relating 
thereto,  see  Hamilton  v.  McNeil,  13  Gratt.  (Va.)  389;  Eaab  v.  Maryland,  7 
Md.  483 ;  Green  v.  Cheek,  5  Ind.  105 ;  People  v.  Carpenter,  24  N.  Y.  86 ; 
Elmendorf  v.  Mayor,  &c.  25  Wend.  693. 

The  following  cases  relate  to  questions  which  have  arisen  with  respect  to 
places  bounded  on  rivers :  An  act  extending  the  bounds  of  a  town  over 
the  adjacent  navigable  waters  does  not  thereby  grant  to  the  town  the  land 
covered  by  the  water,  and  consequently  confers  no  right  to  make  rules  to 
regulate  the  use  of  such  land,  although  such  an  act  will  bring  the  territory 
within  the  limits  of  the  town  for  the  purposes  of  civil  and  criminal  jurisdic- 
tion :  Palmer  v.  Hicks,  6  Johns.  133,  1810. 

In  New  Hampshire,  towns  bounded  by  or  on  rivers  not  navigable,  or  by 
lines  up  or  down  the  river,  extend  to  the  center  of  the  river,  and  this  princi- 
ple is  held  to  apply  to  the  great  streams,  the  Connecticut  and  the  Merri- 
mack :  State  v.  Canterbury,  8  Fost.  (N.  H.)  195,  1854 ;  State  v.  Gilmanton,  14 
N.  H.  467.    See,  also,  Cold  Springs,  &c.  v.  Tolland,  9  Cush.  492. 

In  Connecticut,  towns  bounded  on  rivers,  in  some  instances,  take  the  land 
on  each  side  of  the  river,  in  which  case  the  whole  river  is  within  the  juris- 
diction of  the  town.  In  other  instances,  where  towns  are  bounded  on 
rivers,  the  jurisdiction  thereof  is  construed,  without  any  express  provision 


166  MUNICIPAL    CORPORATIONS.  [CH.  VIII. 

established  by  legislative  authority.  The  power  to  incorporate 
a  place  necessarily  includes  the  power  to  fix  and  change  its 
boundaries. 

§  125.  There  cannot  be,  at  the  same  time,  within  the  same 
territory,  two  distinct  municipal  corporations,  exercising  the  same 
powers,  jurisdictions,  and  privileges.1 

to  that  effect,  and  in  virtue  of  ancient  usage  to  that  effect,  to  extend  to 
the  center  of  the  stream.  Opposite  towns  have  each  political  and  civil 
jurisdiction  to  the  center,  though  the  charter  limits  extend  only  to  the 
stream,  or  margin  or  channel  thereof:  Pratt  v.  State  (assault  on  officer  on 
the  river  Connecticut),  5  Conn.  388,  1824;  Hayden  v.  Noyes  (oyster  fishery 
on  the  Connecticut  river),  ib.  391,  395.  Hosmer,  C.  J.  (ib.  395),  remarks: 
"  Every  part  of  the  Connecticut  Kver,  so  far  as  it  relates  to  jurisdiction,  is 
within  some  town  in  the  state  ;  or  these  waters  would  be  a  sanctuary  for 
debtors  and  criminals.    Such  has  been  the  invariable  usage." 

The  jurisdiction  of  Brooklyn,  for  police  purposes,  extends  to  low  water  line, 
whether  formed  naturally  or  artificially :  Furman  Street,  17  Wend.  649, 
661.  See  ITdall  v.  Trustees,  19  Johns.  175,  ib.  179,  as  to  boundary  of  New 
York  city.  By  statute,  the  bounds  of  Albany  extend  to  the  middle  of  the 
Hudson  river :  9  Wend.  602.  Eastern  boundary  line  of  St.  Louis  was  de- 
fined by  the  charter  to  be  the  Missislfrppi  river,  and  it  was  held  to  extend 
to  the  middle  of  the  stream,  and  not  simply  to  the  bank :  Jones  v.  Soulard, 
24  How.  41,  1860. 

Where  the  riparian  proprietor  only  owns  to  high  water  mark,  and  all 
below  belongs  to  the  state,  a  city  cannot  tax  lots  covered  by  water  beyond 
high  water  mark :  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  525 ;  ib.  530. 

Statute  duty  as  to  bridges  of  adjacent  towns  bounding  on  a  river  run- 
ning between  them :  Brookline  v.  Westminster,  4  Vt.  224  ;  Granby  v.  Thurs- 
ton, 23  Conn.  416. 

The  same  construction  that  is  given  to  grants  is  given  to  statutes  which 
prescribe  the  boundaries  of  incorporated  territories.  Thus,  where  a  stream 
not  navigable  is  made  the  boundary,  the  center  of  the  stream  is  the  true 
line :  Cold  Springs,  &c.  v.  Tolland,  9  Cush.  492,  1852  (action  for  defective 
bridge) ;  Inhabitants  of  Ipwick,  13  Pick.  431. 

1  Willc.  on  Corp.  27;  Patterson  v.  Society,  &c.  4  Zabriskie  (N.  J.),  385, 
399,  per  Green,  C.  J.,  1854 ;  Bex  v.  Passmore,  3  Term  B.  243 ;  Bex  v.  Arhery, 
2  Bro.  P.  C.  336 ;  Grant  on  Corp.  18.  Where  the  boundary  line  of  a  cor- 
poration was  vague  and  indefinite,  the  practical  interpretation  which  had 
been  given  to  the  statute  by  the  citizens  of  the  disputed  district  in  exer- 
cising municipal  privileges,  such  as  voting,  &c.  was  adopted  by  the  court : 
Milne  *.  Mayor,  &c.  13  La.  69,  1838.  See,  also,  Hamilton  v.  McNeil,  13 
Gratt.  (Va.)  389,  1856,  Boundaries  may  be  defined  by  long  use,  confirmed 
by  a  legislative  recognition  :  People  v.  Farnham,  35  111.562.  If  a  dwelling 
house  is  divided  by  the  boundary  line  between  two  towns,  that  portion  of  the 
house  which  the  occupant  mainly  and  substantially  makes  his  home  (as  by 
sleeping,  eating,  &c.)  fixes  his  residence,  and  he  cannot  elect  to  reside  and 
be  taxed  in  the  other  toWn :  Cheenery  «.  Waltham.  8  Cusb.  R»7  ^  " 


CH.  VIII.]  CORPORATE   BOUNDARIES.  167 

§  126.  Not  only  may  the  legislature  originally  fix  the  limits 
of  the  corporation,  but  it  may  subsequently  annex,  or  author- 
ize the  annexation  of,  contiguous  or  other  territory,  and  this 
without  the  consent,  and  even  against  the  remonstrance,  of  the 
majority  of  the  persons  residing  in  the  corporation  or  on  the 
annexed  territory.  And  it  is  no  constitutional  objection  to 
the  exercise  of  this  power  of  compulsory  annexation,  that  the 
property  thus  brought  within  the  corporate  limits  will  be  sub- 
ject to  taxation  to  discharge  a  pre-existing  municipal  indebted- 
ness, since  this  is  a  matter  which,  in  the  absence  of  special 
constitutional  restriction,  belongs  wholly  to  the  legislature  to 
determine.1 

1  Blanchard  v.  Bissell,  11  Ohio  St.  96,  1860,  defining  contiguity  and  con- 
struing statute  authorizing  county  commissioners  to  annex  ;  following  and 
approving  Powers  v.  Wood  County,  8  Ohio  St.  285,  1858.  See,  also,  Lay- 
ton  v.  New  Orleans,  12  La.  An.  515, 1857 ;  Arnoult  v.  New  Orleans|  11  ib.  54; 
Cheany  v.  Hooser,  9  B.  Mon.  330;  Gorham  v.  Springfield,  21  Maine,  59; 
Morford  v.  Unger,  8  Iowa,  82,  1859 ;  St.  Louis  v.  Russell,  9  Mo.  503,  1845 ; 
St.  Louis  v.  Allen,  13  Mo.  400,  1850 ;  Railroad  Company  r.  Spearman,  12 
Iowa,  112  ;  Wade  v.  Richmond,  18  Gratt.  (Va.)  583,  1868  ;  Norris  v.  Mayor, 
&c.  1  Swan  (Tenn.),  164;  Elston  v.  Crawfordsville,  20  Ind.  272  ;  Edmunds  v. 
Gookins,  ib.  477 ;  Girard  v.  Philadelphia,  7  Wall.  1,  1868.  "  It  would  re- 
quire," says  Swan,  J.,  in  Powers  v.  Wood  County,  8  Ohio  St.  285,  290,  "  a 
very  artificial  and  unsound  mode  of  reasoning  to  hold  that  territory  could 
not  be  annexed  to  a  town  which  owed  debts,  until  the  owners  of  such  ter- 
ritory were  paid  a  compensation  in  money  for  a  proportional  part  of  such 
debts,  on  the  ground  that  the  property  annexed  was  condemned  for  public 
use.  It  is  not  to  be  presumed  that  a  municipal  corporation  has  contracted 
a  debt  without  being  correspondingly  benefited." 

It  is  held  in  Pennsylvania  that,  under  the  terms  of  the  act  of  the  legisla- 
ture authorizing  the  incorporation  of  villages,  the  boundaries  cannot  be 
extended  so  as  to  include  a  large  body  of  farm  lands;  but  the  district  to  be 
incorporated  should  be  restricted  by  the  courts  in  which  the  proceeding  is 
had,  so  as  to  include  no  more  than  the  village  itself  and  its  proper  terri- 
tory :  Borough  of  Little  Meadows,  35  Pa.  St.  335,  1860 ;  Devore's  Appeal, 
56  Pa.  St.  163  ;  Blooming  Valley,  ib.  66 ;   and  see  chapter  on   Taxation, 


In  Indiana,  under  act  of  June  18,  1852,  lots  adjoining  a  city,  which  are 
laid  off,  platted,  and  recorded,  may  be  included  within  the  city  limits  by 
resolution  of  the  common  council.  Contiguous  territory  not  thus  laid  off, 
&c.  can  only  be  annexed  by  petition  to  the  hoard  of  county  commissioners  : 
Jeffersonville  v.  Weems,  5  Ind.  (Porter)  547, 1854. 

Effect  of  extension  of  corporate  limits  on  homestead  right,  where  different 
provisions  are  made  for  country  and  town  homesteads:  Taylor  «.  Boulware, 
17  Texas,  74 ;  Finley  v.  Dietrick,  12  Iowa,  516. 


168  MUNICIPAL   CORPORATIONS.  [CH.  VIII. 

§  127.  In  connection  with  the  power  of  the  legislature  to 
create  corporations  and  determine  their  extent,  reference  may- 
be made  to  the  division  of  towns  or  public  corporations _by  legisla- 
tive act  or  authority.  There  is  no  restriction  on  the  general 
power,  unless  it  be  found  in  the  constitution  of  the  state.1  In 
case  of  division,  the  legislature  may,  as  we  have  already  seen, 
apportion  the  burden  between  the  two,  and  determine  the  pro- 
portion to  be  borne  by  each.2  In  Connecticut,  "the  legisla- 
ture," says  the  Supreme  Court,  "have  immemorially  exer- 
cised the  power  of  dividing  towns  at  its  pleasure,  and,  upon 
such  division,  apportioning  the  common  property  and  common 
burdens  in  such  manner  as  to  it  shall  seem  reasonable  and 
equitable."3  Accordingly,  it  may  impose  on  one  town,  upon 
such  division,  the  entire  expense  of  erecting  and  maintaining 
a  bridge  across  a  river  which  is  the  dividing  line  between  the 
two  towns.1 

§  128.     On  the  division  of  a  town  or  public  corporation  pos- 
sessing corporate  property,  into  two  separate  towns  or  corn- 
Recording  town  plats :  Bemis  v.  Becker,  1  Kansas,  226  ;  Mason  v.  Pitt,  21 
Mo.  391 ;  Strong  v.  Darling,  9  Ohio,  201. 

As  to  taxation,  for  general  municipal  purposes,  of  rural  property  within 
corporate  limits  and  the  restrictions  on  the  right,  see  chapter  on  Taxation, 
post. 

1  Ante,  Chap.  IV.  p.  71,  Sec.  30 ;  p.  80,  Sec.  36. 

2  Ante,  pp.  80,  81,  88 ;  Londonderry  v.  Derry,  8  N.  H.  320, 1836  ;  Bristol  v. 
New  Chester,  3  ZST.  H.  532  ;  Sill  v.  Corning,  15  N.  Y.  297 ;  People  v.  Draper, 
ib.  532 ;  Smith  v.  Adrian,  1  Mich.  495 ;  Waring  v.  Mobile,  24  Ala.  701 ,-  Mayor 
».  State,  15  Md.  376 ;  Love  v.  Schenck,  12  Ire.  Law,  304,  1851 ;  Love  v.  Ram- 
sour,  ib.  328,  1855 ;  Olney  v.  Harvey,  50  111.  453  ;  Dunsmore's  Appeal,  52  Pa. 
St.  374 ;  County  Court  v.  County  Court,  3  Bush  (Ky.),  93.  And  see,  ante, 
Chap.  IV.  for  a  general  view  of  the  extent  of  the  legislative  authority  over 
public  and  municipal  corporations  and  their  rights,  liabilities,  property,  and 
contracts ;  and  Chap.  VII.  as  to  the  dissolution  of  municipal  corporations 
and  its  effect  upon  their  creditors  and  property. 

=  Granby  v.  Thurston,  23  Conn.  416,  419,  per  Waite,  C.  J. ;  Willimantic 
Society  v.  School  Society  (division  of  school  societies  and  funds),  14  Conn. 
457  ;  Hartford  Bridge  Company  v.  East  Hartford  (ferry  franchise),  16  Conn. 
149 ;  affirmed,  10  How.  (IT.  S.)  511,  541.  Legislature  cannot  control  an  edu- 
cational fund  raised  by  individual  bounty  and  not  by  taxation :  Plymouth  o. 
Jackson,  15  Pa.  St.  44.  See,  also,  Montpelier  v.  East  Montpelier,  27  Vt.  704 ; 
29  ib.  12.    Ante,  pp.  81,  93,  98,  Sec.  52;  p.  159,  Sec.  115. 

4  Granby  v.  Thurston,  supra.    Ante,  p.  90,  Sec.  43. 


CH.  VIII.]  CORPORATE    BOUNDARIES.  169 

munities,  each,  in  the  absence  of  a  different  provision  by  the 
legislature,  was  considered  by  the  Supreme  Court  of  New 
York  to  be  entitled  to  hold  in  severalty  the  public  property  which 
fell  within  its  limits.1  In  Connecticut,  it  is  declared  to  be 
"  well  settled  that  when  part  of  the  inhabitants  and  ter- 
ritory of  an  older  town  are  erected  into  a  new  corporation, 
the  old  town  retains  all  of  the  property,  rights,  and  priv- 
ileges formerly  belonging  to  it,  and  is  subject  to  all  its  former 
duties  and  liabilities,  at  least  as  it  regards  property  which  has 
no  fixed  location  in  the  new  town,  as  lands,  buildings,  &c. ;  " 
accordingly,  "  upon  the  division  of  Hartford,  no  part  of  the ' 
ferry  franchise  would  pass  to  the  new  town  of  East  Hartford, 
except  by  virtue  of  a  legal  provision  to  that  effect."2  So,  in 
Massachusetts,  it  has  been  held  that  if  a  new  corporation  is 
created  out  of  part  of  the  territory  of  an  old  corporation,  or  if 
part  of  its  territory  and  inhabitants  is  annexed  to  another 
corporation,  unless  some  provision  is  made  in  the  act  respect- 
ing the  property  and  existing  liabilities  of  the  old  corporation, 
the  latter  will  be  entitled  to  all  the  property,  and  be  solely 
answerable  for  all  the  liabilities.3 

1  North  Hempstead  v.  Hempstead,  2  Wend.  109,  1828.  "  Suppose,"  says 
Savage,  C.  J.,  delivering  the  opinion  of  the  court  in  this  case,  "  the  state  to 
be  divided  into  two  states,  without  some  special  agreement,  ,each  would 
own  the  public  property  within  its  limits.  So  of  counties  —  the  public 
buildings  remain  the  property  of  the  old  county ;  yet  public  buildings  are 
as  much  public  property  as  public  lands.  So  as  to  the  plains,  meadows,  and 
marshes  which  are  the  subject  of  this  suit.  A  bill  filed  by  a  new  county 
for  the  partition  of  the  gaol  and  court  house,  which  had  been  common 
property,  would  be  the  same  in  principle  as  the  bill  in  this  suit.  Would 
not  such  a  suit  be  considered  preposterous  ?  Suppose  a  religious  corpora- 
tion, possessed  of  a  church  and  parsonage  ;  it  becomes  expedient  to  erect 
part  into  a  new  corporation ;  would  not  the  old  corporation  retain  the 
property,  unless  an  agreement  was  made  as  to  the  partition  of  it?"  2  Wend. 
109,  135.  Incorporation  of  part  of  a  town  into  a  city,  held  not  to  divest  the 
title  of  the  town  to  a  tract  of  land  owned  by  it  in  fee  simple,  "  in  trust,  for 
the  use  of  the  town,  forever:  'K    Milwaukee  v.  Milwaukee,  12  Wis.  93. 

2  Per  Church,  J.,  in  Hartford  Bridge  v.  East  Hartford,  16  Conn.  149,  171, 
1844 ;  affirmed  by  Supreme  Court  of  the  United  States,  10  How.  (U.  S.)  511, 
541.  Approving  Windham  v.  Portland,  4  Mass.  384 ;  Hampshire  v.  Frank- 
lin, 16  Mass.  76 ;  North  Hempstead  ».  Hempstead,  2  Wend.  109.    Ante,  p.  24. 

"  Windham  v.  Portland,  4  Mass.  384, 1808 ;  Richards  v.  Daggett,  4  ib.  539  ; 
Hampshire  v.  Franklin,  16  Mass.  76, 1819 ;  Richland  County  v.  Lawrence,  12 

22 


170  MUNICIPAL   CORPORATIONS.  CH.  VIII.] 

§  129.  But  upon  the  division  of  the  old  corporation,  and 
the  creation  of  a  new  corporation  out  of  part  of  its  inhabitants 
and  territory,  or  upon  the  annexation  of  part  to  another  cor- 
poration, the  legislature  may  provide  for  an  equitable  appropria- 
tion or  division  of  the  property,  and  impose  upon  the  new 
corporation,  or  upon  the  people  and  territory  thus  disan- 
nexed,  the  obligation  to  pay  an  equitable  proportion  of  the  cor- 
porate debts.1     The  charters  and  constituent  acts  of  public  and 

111.  1, 1850;  Blackstone  v.  Tafl,  4  Gray,  250,  1855 ;  North  Yarmouth  v.  Skil- 
lings,  45  Maine,  133,  142,  1858;  Cobb  ».  Kingman,  15  Mass.  197;  Minot  v. 
Curtis,  7  Mass.  441,  445.    Opinion  of  Supreme  Judges,  6  Cush.  575 ;  ib.  578. 

1  Gorham  %.  Springfield,  21  Maine,  61 ;  North  Yarmouth  v.  Skillings,  45 
Maine,  133,  1858 ;  Brewster  v.  Harwich,  4  Mass.  278 ;  ib.  315 ;  ib.  384 ;  Har- 
rison v.  Bridgton,  16  Mass.  16 ;  ib.  76,  1819 ;  Lakin  v.  Ames,  10  Cush.  198, 
1852.  See  School  District  v.  Richardson,  23  Pick.  62,  1839,  as  to  the  effect 
in  Massachusetts  upon  the  title  to  property  of  the  abolition  of  old  school 
districts  and  the  formation  of  new  ones ;  followed  by  School  District  v. 
Tapley,  1  Allen,  49  ;  but  a  dictum  therein  questioned  by  Hoar,  J.  Simmons 
v.  Nahant,  3  Allen,  316,  as  to  necessity  of  a  deed  of  conveyance  for  real 
estate.  Tileson  v.  Newman,  23  Vt."  421 ;  Bichards  v.  Daggett,  4  Mass.  534 ; 
Waldron  v.  Lee,  5  Pick,  323.  In  Pennsylvania  it  was  held  that,  on  a  divis- 
ion of  a  township,  each  fraction  remains  liable  for  the  whole  debt  due  by 
the  old  township ;  if  one  pays  the  whole  amount,  it  lays  the  foundation  for 
contribution :  Plunkett  Township  v.  Crawford,  27  Pa.  St.  107,  1856.  See 
New  London  v.  Montville,  1  Boot  (Conn.),  184.  As  to  right  to  collect  taxes 
on  such  division,  see  Barnett  Township  v.  Jefferson  County,  9  Watts,  166  ; 
Devor  v.  McClintock,  9  Watts  &  S.  80. 

As  to  support  of  poor  in  case  of  division :  North  Whitehall  11.  South  White- 
hall, 3  Serg.  &  Bawle,  117 ;  Overseers,  &c.  v.  Overseers,  &c.  2  ib.  422 ;  Still- 
water v.  Green,  4  Halst.  (N.  J.)  59. 

Where  there  has  been  an  insufficient  legal  division  and  organization  of  a 
new  district,  this  may  be  afterwards  ratified  and  made  binding :  Sawyer  v. 
Williams,  25  Vt.  311 ;  Pierce  v.  Carpenter,  10  Vt.  480  ;  Alden  v.  Bounsville, 
7  Met.  219. 

The  mode  of  proceeding,  under  the  statute  of  New  York,  in  the  division  of 
old  and  the  erection  of  new  towns,  the  directory  nature  of  the  statute  as  to 
mode  of  proceeding,  and  the  presumptions  in  favor  of  the  regularity  of  the 
proceedings,  are  clearly  set  forth  in  the  case  of  The  People  v.  Carpenter,  24 
N.  Y.  86. 

As  illustrating  the  directory  nature  of  such  statutes,  see  Elmendorf  v. 
Mayor,  25  Wend,  693 ;  Striker  «.  Kelly,  7  Hill  (N.  Y.),  9.  But  an  agree- 
ment in  such  division,  transcending  the  powers  of  the  officers  who  make 
it,  is  not  binding  on  the  town  :  Overseers  v.  Same,  18  Johns.  382.  Effect  of 
erection  of  a  new  out  of  a  portion  of  an  old  county  on  the  terms  of  officers 
who  respectively  reside  in  the  new  and  old  portions,  see  People  v.  Morrell, 
21  Wend.  563,  1839,  and  authorities  cited  by  Cowen,  J.,  p.  580.    County 


CH.  VIII.]  CORPORATE   BOUNDARIES.  171 

municipal  corporations  are  not,  as  we  have  before  seen,  con- 
tracts, and  they  may  he  changed  at  the  pleasure  of  the  legisla- 
ture, subject  only  to  the  restraints  of  special  constitutional 
provisions,  if  any  there  be.  And  it  is  an  ordinary  exercise  of 
the  legislative  dominion  over  such  corporations  to  provide  for 
their  enlargement  or  division;  and,  incidental  to  this,  to  appor- 
tion their  property  and  to  direct  the  manner  in  which  their 
debts  or  liabilities  shall  be  met,  and  by  whom.  The  opinion 
has  been  expressed  that  the  partition  of  the  property  must  be 
made  at  the  time  of  the  division  of,  or  change  in,  the  corpora- 
tion, since  otherwise  the  old  corporation  becomes,  under  the 
rule  just  before  stated,  the  sole  owner  of  the  property,  and 
hence  cannot  be  deprived  of  it  by  a  subsequent  act  of  the  legis- 
lature.1 But,  in  the  absence  of  special  constitutional  limita- 
tions upon  the  legislature,  this  view  cannot,  perhaps,  be  main- 
tained, as  it  is  inconsistent  with  the  necessary  supremacy  of 
the  legislature  over  all  its  corporate  and  unincorporate  bodies, 
divisions  and  parts,  and  with  several  well  considered  adjudica- 
tions.2 

Commissioners  must,  by  law,  reside  in  the  county,  and  on  the  erection  of  a 
new  county  in  which  their  residences  are  included,  they  become  residents 
of  the  new  county  and  non-residents  of  the  old  county,  and  cannot  legally 
act  for  it,  unless  they  remove  within  it ;  though  if  they  continue  to  act 
without  such  removal  their  acts  are  valid,  being  officers  de  facto :  State  v. 
Hartshorn,  17  Ohio,  135  ;  State  v.  Jacobs,  ib.  143. 

1  Hampshire  v.  Franklin,  16  Mass.  76  ;  Windham  v.  Portland,  4  ib.  390  ; 
Bowdoinhain  v.  Richmond,  6  Greenl.  (Maine)  112,  holding  that  subsequent 
legislation  could  not  change  the  apportionment  of  the  debts  between  an 
old  town  and  one  created  from  it,  since  such  an  apportionment  was  in  the 
nature  of  a  contract.    But  see,  ante,  Chap.  IV.  pp.  85,  91. 

2  Layton  v.  New  Orleans,  12  La.  An.  515,  1857,  cited,  ante,  p.  80,  Sec.  36 ; 
Dunsmore's  Appeal,  52  Pa.  St.  374.  In  this  case,  one  borough  was  divided 
into  four,  and  the  legislature  was  held  to  have  the  power  afterwards  to  pro- 
vide for  an  equitable  adjustment  of  the  indebtedness  among  them  all,  by 
commissioners  to  be  appointed  by  a  designated  court,  and  from  whose  de- 
termination no  appeal  was  allowed.  As  to  extent  of  legislative  control  over 
public  and  municipal  corporations  and  their  rights,  liabilities,  property,  and 
contracts,  see,  ante,  Chap.  IV.  and  cases  there  cited ;  Cooley,  Const.  Lim. 
193,  231,  232  ;  post,  chapter  on  Taxation. 


172  MUNICIPAL    CORPORATIONS.  £CH.   VIII. 

Corporate  Seal. 

§  130.  The  charters  of  municipal  corporations  usually  con- 
tain a  clause  authorizing  them  to  have  and  use  a  common  seal, 
and  to  alter  the  same  at  pleasure.  "Without  an  express  grant 
it  is,  however,  incident  to  every  corporation  to  adopt  and  use 
a  corporate  seal.  The  essential  importance  which  the  common 
law  anciently  attached  to  seals,  and  the  modern  relaxation  of 
the  rule,  are  well  known.  Respecting  seals,  the  same  general 
principles  apply  to  private  and  to  municipal  corporations. 
Thus,  a  corporation  of  the  latter  class  would  doubtless  be 
bound  equally  with  a  private  corporation  by  any  seal  which 
has  been  authoritatively  affixed  to  an  instrument  requiring  it, 
though  it  be  not  the  seal  regularly  adopted.1  On  the  other 
hand,  it  would  not  be  bound  by  the  affixing  of  either  the  reg- 
ular or  temporary  seal  by  a  person  not  legally  and  duly  author- 
ized.2 So,  under  the  modern  doctrine,  a  corporation  can  do 
an  act  in  pais  by  an  attorney  in  fact,  and  such  attorney  need 
not  necessarily  be  appointed  under  seal.3 

§  131.  The  seal  of  a  private  corporation  attached  to  an  in- 
strument does  not  prove  its  own  authenticity ;  but  it  should  be 
shown  by  evidence  aliunde  to  be  really  the  seal  of  the  corpora- 
tion.4   The  same  doctrine  is,  probably,  applicable  to  the  seal 

1  Bank,  &c.  v.  Railroad  Company,  30  Vt.  159,  1858,  per  Redfleld,  C.  J. ; 
Tenney  v.  Lumber  Company,  43  N.  H.  343  ;  Mill  Dam  Foundry  v.  Hovey,  21 
Pick.  417 ;  Porter  v.  Railroad  Company,  37  Maine,  349 ;  Angell  &  Ames, 
Corp,  Sec.  217  ;  Phillips  v.  Coffee,  17  111.  154 ;  Stebbins  v.  Merritt,  10  Cush. 
27 ;  City  Council  v.  Moorehead,  2  Rich.  Law,  430 ;  Grant  on  Corp.  59,  and 
cases,  and  note  author's  opinion  and  his  doubt  as  to  the  existence  of  any 
common  law  right  to  change  the  common  seal.  An  impression  of  a  corporate 
seal  stamped  upon  and  into  the  substance  of  the  paper  containing  the  in- 
strument is  sufficient,  without  wafer  or  wax:  Hendee  v.  Pinkerton,  14 
Allen,  381. 

2  Koehler  v.  Iron  Company,  2  Black,  715,  1862 ;  Bank  of  Inland  v.  Evans, 
33  Eng.  Law  and  Eq.  23. 

3  Curry  v.  Bank,  8  Porter  (Ala.),  361, 1839 ;  Lathrop  «.'  Bank,  8  Dana,  114 ; 
Abby  v.  Billups,  35  Miss.  618. 

1  Den  v.  Vreelandt,  2  Halst.  (N.  J.)  352,  1800 ;  Gilbert  Ev.  19 ;  Jackson  v. 
Pratt,  10  Johns.  381 ;  Moises  v.  Thompson,  8  Term  R.  303 ;  City  Council  v. 
Moorehead,  3  Rich.  (South  Car.)  Law,  430 ;  Foster  v.  Shaw,  7  Serg.  &  Rawle, 
163 ;  ib.  318 ;  Mann  v.  Pentz,  2  Sandf.  Ch.  257. 


CH.  VIII. J  CORPORATE    SEAL.  173 

of  a  municipal  corporation,  except  where  changed  by  charter  or 
statute,  although  it  seems  that  it  is  usual  in  England  to  allow 
deeds  and  other  instruments  relating  to  real  estate  to  go  to 
the  jury  when  authenticated  by  the  corporate  seals  of  London, 
Edinburgh,  or  Dublin  —  these  being  corporations  of  great 
antiquity,  or  recognized  by  the  legislature.1  The  corporate  seal 
attached  to  an  instrument  attested  by  the  signatures  of  the 
proper  officers,  is  prima  facie  evidence  that  it  was  lawfully 
placed  there,  and  that  the  instrument  is  the  act  of  the  cor- 
poration.2 

§  132.  The  modern  rule  is  that  corporations  may  be  bound 
by  contracts  not  under  seal,  and  the  circumstances  under  which 
they  will  be  bound  have  been  stated  by  Story,  J.,  in  terms 
which  have  been  approved  by  the  courts  of  nearly  every  state 
in  the  Union.  "Wherever  a  corporation  is  acting  within  the 
scope  of  the  legitimate  purposes  of  its  institution,  all  parol  con- 
tracts made  by  its  authorized  agents  are  express  promises  of  the 
corporation;  and  all  duties  imposed  on  them  by  law,  and  all 
benefits  conferred  at  their  request,  raise  implied,  promises,  for 
the  enforcement  of  which  an  action  lies."3 

1  Per  ffimey,  C.  J.,  Den  v.  Vreelandt,  2  Halst.  (N.  J.)  352. 

8  Levering*.  Mayor,  7  Humph, (Tenn.)  553,  1847;  Abbott,  Corp.  Digest, 
Tit.  Seal,  p.  725,  Sec.  31,  and  the  many  cases  there  cited ;  Benedict  v.  Den- 
ton, Walk.  Ch.  336 ;  Musser  v.  Johnson,  42  Mo.  74. 

"  Bank  of  Columbia  «.  Patterson,  7  Cranch  (U.  S.),  299,  306,  1813;  Bank  v. 
Wister,  2  Pet.  318  ;  Davenport  o.  Insurance  Company,  17  Iowa,  276 ;  Ring  v. 
Johnson  County,  6  Iowa,  265.  See,  further,  chapters  on  Contracts  and 
Property,  post.  Corporate  seal  affixed  to  the  note  of  the  corporation  makes 
it  a  specialty,  having  in  this  respect  the  same  effedfas  the  seal  of  a  natural 
person :  Clarke  v.  Farmers  &  Co.  15  Wend.  256 ;  ib.  265 ;  Benoist  v.  Caron- 
dolet,  8  Mo.  250 ;  Sturtevant  v.  Alton,  3  McLean,  393.  Lease  held  void  for 
want  of  the  corporate  seal:  Kinzie  v.  Chicago,  2  Scam.  (111.)  188.  But 
otherwise  of  an  authorized  agreement  by  an  agent  of  a  corporation  to  sell 
lands :  Legrand  v.  The  College,  5  Munf.  (Va.)  324 ;  or  authorized  assign- 
ment of  a  lease :  Sanford  v.  Tremlett,  42  Mo.  384.  Corporate  seal  to  con- 
veyance by  eounty  commissioners :  Bestor  v.  Powers,  2  Gilm.  (111.)  126. 


174  MUNICIPAL  CORPORATIONS.  [CH.  IX. 


CHAPTER  IX. 

Municipal  Elections  and  Officers. 

§  133.  In  considering  the  Creation  and  Constitution  of 
Municipal  Corporations,  we  have  now  reached,  in  its  order, 
the  subject  of  Municipal  Elections  and  Officers.  It  will  be 
treated  under  the  following  heads :  — 

1.  Municipal  Popular  Elections — Sees.  134-138. 

2.  Special  Tribunal  to  Determine  Election   Contests  for 
Municipal  Offices — Sees.  139-144. 

3.  Power  to   Create   and  Appoint  Municipal   Officers  — 
.Sees.  145-152. 

4.  Oath  and  Official  Bond— Sees.  153-155. 

5.  Duration  of  Official  Term— Sees.  156-160. 

6.  Vacancies  in  Municipal  Offices  —  Sec.  161. 

7.  Refusal  to  Serve  in  Office — Sec.  162. 

8.  Resignation  of  Municipal  Officers — Sees.  163-167. 

9.  Compensation  of  Municipal  Officers — Sees.  168-173. 

10.  Liability  of  the  Corporation  to  the  Officer — Sec.  174. 

11.  Liability  of  the  Officer  to  the  Corporation  and  to  Others 
—Sec.  175. 

12.  Amotion  and  Disfranchisement — Sees.  177-194. 

Municipal  Popular  Elections. 

§  134.  Elections  by  the  people,  with  exceptions  in  a  few 
states,  are  by  folded  or  secret  ballot,  and  not  open  or  viva 
voce}  The  qualifications  of  electors  or  voters  are  fixed  by  the 
constitution  and  laws,  and  cannot  be  changed  by  any  ordinance 

1  Cooley,  Const.  Lira.  Chap.  XVII.  598,  where  the  subject  of  Popular 
Elections,  the  Eight  to  Participate  Therein,  the  Conditions  Necessary  to 
the .  Exercise  of  the  Right,  the  Manner  of  Voting,  the  Conduct  and  Suffi- 
ciency of  Elections  are  satisfactorily  presented ;  and  the  mles  and  doctrines 
deduced  from  the  cases  are,  in  general,  applicable  to  popular  municipal 
elections. 


[CH.  IX.  MUNICIPAL   POPULAR   ELECTIONS.  175 

or  act  of  the  corporation.1  Residence  for  a  certain  period 
within  the  municipality  is  almost  invariably  required  in  ex- 
press terms,  as  one  of  the  qualifications  of  the  right  to  vote  at 
elections  therein,  and  as  one  of  the  conditions  of  eligibility  to 
hold  a  municipal  office.  Non-residents  of  the  corporation 
have,  however,  been  held  competent  to  be  elected  to  office 
when  residence  was  not  expressly  required,  but  the  decisions 
cannot,  perhaps,  be  said  to  conclude  the  point,2  and,  if  ex- 

1  Petty  v.  Tooker,  21  N.  Y..267;  Commonwealth  v.  Woelper,  3  Serg.  & 
Rawle,  29 ;  People  «.  Phillips,  1  Denio,  388 ;  Bex  v.  Spencer,  3  Burr.  1827  ; 
Rex  v.  Mayor  of  Weymouth,  7  Mod.  371;  Newling  v.  Francis,  3  Term  R. 
189;  Rex  v.  Chitty,  5  Ad.  &  E.  609;  Rex  v.  Bumstead,  2  B.  &  Ad.  699. 

1  Municipal  officers  may  be  elected  from  non-residents  of  the  corporation 
when  there  is  no  statute  or  constitution  prohibiting  it,  particularly  when 
the  office  to  be  filled  is  one  requiring  professional  skill,  and  not  repre- 
sentative or  legislative  in  its  character :  State  v.  Blanchard  (city  surveyor), 
6  La,  An.  515,  1851.  The  conclusion  was  reached  with  hesitation,  but  the 
whole  court  concurred:  Ib.  So  in  The  State  v.  Swearingen,  12  Geo.  23, 1852, 
it  was  decided  where  the  charter  of  the  town  provided  "  for  the  election 
of  city  officers  by  the  people  of  the  city  qualified  to  vote,"  and  was  silent 
as  to  requiring  the  officers  to  be  residents,  that  a  person  might  legally  be 
elected  and  qualified  who  was  not  a  resident  of  the  place.  Residence  as 
a  qualification  for  municipal  office :  See  Commonwealth  v.  Jones,  12  Pa.  St. 
365.  Residents,  who  are :  Cohen  v.  Wigfall,  8  Rich.  Law,  237 ;  2  ib.  489 ; 
Goldersleeve  v.  Alexander,  2  Speer  (South  Car.),  298.  In  England,  by  the 
Municipal  Corporations  Act  (Sec.  9),  inhabitant  householders  resident 
■within  the  borough,  or  within  seven  miles  of  the  borough,  and  rated  to  the 
relief  of  the  poor,  are  made  burgesses  or  citizens.  Before  that  act  was 
passed,  residence  in  the  freeman  or  citizen  was  sometimes  required,  to  ren- 
der him  eligible  to  office,  although  non-residents,  wherever  residing,  might, 
by  a  singular  perversion  of  the  purposes  of  a  municipal  corporation,  be  ad- 
mitted to  freedom  or  membership,  unless  expressly  restrained  by  the  char- 
ter ;  and  if  residence  was  expressly  required  as  a  condition  of  eligibility,  it 
was  not  necessary  that  the  officer  should  continue  to  reside  in  the  place 
while  holding  the  office.  Not  only  so,  but  it  was  held  that  where  residence 
was  necessary  as  a  qualification  during  office,  it  was  not,  by  implication, 
necessary  that  the  person  elected  should  have  been  a  resident  at  the  time 
of  the  election.  And  when  inhabitancy  was  requisite,  it  meant  not  merely 
residence,  but  keeping  a  house  within  the  place,  and  paying  scot  and  lot : 
Willcock  on  Munic.  Corp.  188,  pi.  472;  ib.  191,  pi.  481;  ib.  193,  488;  Rex  v. 
Monday,  Cowp.  539 ;  Rex  v.  Mallet,  2  Barnard.  408 ;  Rex  v.  Cambridge,  4 
Burr.  2008  ;  Rex  v.  Heath,  1  Barnard.  417.  These  rules  are  of  very  doubt- 
ful application  in  this  country,  since  here  all  of  the  inhabitants  are  mem- 
bers of  the  corporation,  and  non-residents  cannot  become  such.  And,  in 
general,  it  may  be  said  that  a  person  is  an  inhabitant  or  resident  who  has 
his  domicil  or  home  in  the  place ;  but  it  is  foreign  to  the  purpose  of  this 


176  MUNICIPAL    CORPORATIONS.  [CH.  IX. 

tended  to  the  higher  offices,  are  hardly  consistent  with  the 
fundamental  idea  of  municipal  government. 

§  135.  The  choice  of  a  disqualified  person  is  ineffectual.  Thus, 
if  the  law  requires  freeholders  to  be  chosen  for  certain  officers, 
the  election  of  a  person  not  a  freeholder  is 'void.1  But  unless 
the  votes  for  an  ineligible  person  are  expressly  declared  to  be 
void,  the  effect  of  such  a  person  receiving  a  majority  of  the 
votes  cast  is,  according  to  the  weight  of  American  authority, 
and  the  reason  of  the  matter  (in  view  of  our  mode  of  election, 
without  previous  binding  nominations,  by  secret  ballot,  leav- 
ing each  elector  to  vote  for  whomsoever  he  pleases),  that  a 
new  election  must  be  held,  and  not  to  give  the  office  to  the 
qualified  person  having  the  next  highest  number  of  votes.2 

work  to  enter  into  the  difficult  questions  which  have  arisen  with  respect  to 
residency  and  domicil :  Hinds  v.  Hinds,  1  Iowa,  36 ;  Story,  Conn.  Laws, 
Sec.  43 ;  Putnam  v.  Johnson,  10  Mass.  488 ;  Thorndike  v.  Boston,  1  Met.  245. 
Public  officers  vacate  their  office  by  permanent  removal  from  the  territorial 
limits  of  the  corporation :  Barre  v.  Greenwich,  1  Pick.  120 ;  Bumsey  v. 
Campton,  10  N.  H.  567 ;  Giles  v.  School  District,  11  Fost.  304.  But  a  tem- 
porary removal,  with  an  intention  to  return,  will  not,  of  itself,  have  this 
effect:  Van  Orsdall  v.  Hazard,  3  Hill  (N.  Y.),  243,  1842 ;  People  v.  Metropol- 
itan Police  Board,  19  N.  Y.  201 ;  Lyon  o.  Commonwealth,  3  Bibb  (Ky.),430; 
Bex  v.  Exeter,  Comb.  197. 

1  Spear  v.  Bobinson,  29  Maine,  531,  1849 ;  State  v.  Swearingen,  12  Geo. 
23,  1852 ;  State  v.  Gastinel,  20  La.  An.  114,  1868. 

2  State  v.  Swearingen,  12  Geo.  23;  State  v.  Giles,  1  Chand.  (Wis.)  112; 
State  v.  Smith,  14  Wis.  497 ;  Saunders  v.  Haynes,  13  Cal.  145 ;  State  v.  Gasti- 
nel (under  charter),  20  La.  An.  114;  Cooley,  Const.  Lim.  620;  Common- 
wealth ex  rel.  McLaughlin  v.  Cluley,  Sheriff,  Pitts.  Leg.  Jour.  February  3, 
1868.  But  in  Indiana  the  view  is  taken  that,  whether  an  election,  because 
of  the  ineligibility  of  the  candidate  receiving  the  highest  number  of  bal- 
lots, is  a  failure,  and  must  be  held  over,  or  whether  the  highest  eligible 
candidate  is  elected,  depends  upon  circumstances :  1.  If  the  candidate  re- 
ceiving the  highest  number  of  votes  is  ineligible,  but  from  a  cause  unknown 
to  the  voters,  and  which  they  were  not  bound  to  know — as,  for  example,  in- 
fancy, want  of  naturalization,  and  the  like— the  result  is  a  failure,  and 
there  must  be  another  election.  2.  If  the  voters  know,  or  are  bound  to 
know,  the  ineligibility  of  a  candidate,  the  election  is  not  a  failure,  as  the 
eligible  candidate  receiving  the  highest  number  of  votes  is  legally  elected. 
3.  Where  the  ineligibility  of  a  candidate  arises  from  his  holding,  or  having 
held,  a  public  office,  the  people  within  the  jurisdiction  of  such  office  are 
held  in  law  to  know — are  chargeable  with  notice  of — such  ineligibility, 
and  votes  given  for  such  candidate  are  of  no  effect,  and  his  highest  eligible 
competitor  is  elected:  Gulick  v.  New,  14  Ind.  93,  102,  1860,  per  Perkins,  J.; 


CH.  IX.]         MUNICIPAL  POPULAR  ELECTIONS.  177 

§  136.  Where  it  is  discretionary  with  the  municipal  author- 
ities whether  they  will  hold  an  election  or  not,  votes  at  an  un- 
authorized election  are  simply  nullities.1  Elections  fixed  by  law 
at  a  certain  time  and  place  may  be  legally  holden,  although 
notice  has  not  been  published  or  given ;  but  if  the  time  be  not 
defined  by  statute,  and  is  to  be  fixed  by  notice,  the  notice  re- 
quired is  imperative.2  Time  and  place  are  generally  essential, 
but  many  of  the  details  as  to  the  conduct  of  elections  are 
usually  regarded  as  directory.3  Courts  are  anxious  rather  to 
sustain  than  to  defeat  the  popular  will.4 

commenting  on  State  v.  Swearingen  (case  of  non-residency),  12  Geo.  23  ; 
Opinion  of  Judges,  38  Maine,  appendix,  where  a  portion  of  the  people 
voted  for  a  person  not  in  being ;  State  v.  Giles,  1  Chand.  (Wis.)  112. 

In  England,  candidates  are  previously  nominated  and  known,  and  the 
votes  are,  or  at  least  until  very  recently  have  been,  open,  and  there  are 
cases  there  which  decide  or  favor  the  proposition  that  votes  for  a  disquali- 
fied person,  given  after  notice  of  disqualification,  are  thrown  away,  and  the 
other  candidate  is  elected :  Grant  on  Corp.  203-208,  and  cases  cited.  But 
see,  as  to  disqualification  and  notice :  Regina  v.  Hiorns,  7  Ad.  &  E.  690 ; 
Regina  «.  Councillors  of  Derby,  7  Ad.  &  E.  419 ;  and  particularly  Regina  v. 
Mayor  of  Tewkesbury,  Q.  B.  A.  D.  1868  ;  Ex  relatione  Stone,  ib.;  Regina  v. 
Ledyard,  8  Ad.  &  E.  535 ;  Rawlinson  on  Corp.  (5th  ed.)  64,  note,  and  author- 
ities. 

1  Opinions  of  Judges,  7  Mass.  525 ;  Same,  15  ib..  537 ;  Cooley,  Const.  Lim. 
603. 

2  Cooley,  Const.  Lim.  303,  and  cases  cited ;  People  v.  Brenham,  3  Cal.  477, 
1851 ;  People  v.  Fairbury,  51  111.  149, 1869. 

8  Dickey  v.  Hurlburt,  5  Cal.  343;  People  v.  Knight  (essentialness  of  place), 
13  Mich.  424.  Where  the  legislature  provided  that  the  polls  of  the  differ- 
ent wards  should  be  kept  open  until  10  o'clock  p.  m.  and  they  were  closed 
at  8  o'clock,  the  election  was  set  aside :  Pennsylvania  District  Election,  2 
Par.  (Pa.)  526;  Clark's  Case,  ib.  521.  Illegal  adjournment  of  election  to  a 
different  place  from  the  one  designated  in  the  notice :  Commonwealth  v. 
Commissioners,  &c.  5  Rawle,  75.  Where  an  election  is  held  on  a  day  sub- 
sequent to  that  named  in  the  charter,  the  acts  of  officers  thus  elected  are 
valid,  as  respects  the  public  and  third  persons,  and  cannot  be  collaterally- 
inquired  into :  Coles  County  1>.  Allison,  23  111.  437,  distinguished  from  Haynes 
v.  Washington  County,  19  111.  66,  and  approved  in  People  v.  Fairbury,  51  111. 
149,  1869,  Title  of  officers  elected  before  the  legal  incorporation  of  a  place 
may  be  validated  by  the  legislature :  State  v.  Kline,  23.  Ark,  587. 

4  Skerritt's  Case,  2  Par.  (Pa.)  516 ;  Boileau's  Case,  2  Par.  505  ;  Carpenter's, 

Case,  2  Par.  537;  New  Orleans  «.  Graihle,  9  La.  An:  573;  Clifton  v.  Cook,.  7 

Ala.  114;  People  b.  Cook,  14  Barb.  259;  8  N.  Y.  67.    The  rule  as  therein 

stated  is  regarded  by  Mr.  Justice  Cooley  as  "  an  eminently  proper  one,  and 

23 


178  MUNICIPAL   CORPORATIONS.  [CH.  IX. 

§  137.  Thus,  an  inaccurate  designation  of  the  name  of  the 
office  voted  for — as,  for  example,  "Police  Justice"  instead  of 
"Police  Magistrate"  (the  term  used  in  the  statute) — will  not 
render  the  votes  invalid,  where  the  legislative  provisions  make 
clear  the  intention  of  the  voters  in  thus  casting  their  ballots. — 
to  which  intention  effect  should  be  given.1  But  if  a  specific 
number  of  officers  only  can  be  chosen — for  example,  four — 
ballots  containing  the  names  of  more  than  four  persons  for  the 
office  in  question  must  be  rejected.  Any  other  doctrine  might 
result  in  giving  the  elector  two  votes.  There  are  usually  two 
competing  tickets,  and  if  an  elector  can,  in  the  case  supposed, 
cast  a  ballot  containing  jive  names,  he  may  one  of  eight,  and 
thus  vote  (if  he  chooses  to  insert  the  names)  for  both  tickets.2 

to  furnish  a  very  satisfactory  test  of  what  is  essential,  and  what  not,  in 
election  laws : "  Const.  Lim.  618.  See,  also,  as  to  charter  elections  and  rn- 
turns:  Ex  parte  Heath,  3  Hill  (N.  Y.),  42,  53;  People  v.  Stevens,  5  Hill,  616; 
Morgan  v.  Quackenbush,  22  Barb.  72.  Courts  will  not  enjoin  municipal 
elections  unless  the  power  and  right  to  do  so  plainly  exist :  Smith  v.  Mc- 
Carthy, 56  Pa.  St.  359. 

1  People  v.  Matteson,  17  111.  167,  1855. 

2  People  v.  Loomis,  8  Wend.  396,  1832 ;  People  v.  Seaman,  5  Demo,  409. 
Where  only  one  vacancy  exists,  votes  given  for  two  persons  jointly  are 
thrown  away :  Rex  v.  Mayor  of  Leeds,  7  Ad.  &  E.  963 ;  and  in  this  case  it 
was  held  that  a  third  candidate  chosen  by  a  single  regular  vote  was  elected ; 
but  as  to  votes  being  thrown  away,  see  supra.  Where,  by  an  erroneous  con- 
struction of  the  act,  an  election  has  been  held  for  but  one  councillor,  instead 
of  two,  the  candidate  second  on  the  poll  cannot  have  a  mandamus  to  admit 
him  to  the  office :  Regina  v.  Hoyle,  H.  T.  1855,  cited  in  Rawl.  on  Corp.  65, 
note.  His  remedy  is,  by  mandamus,  to  have  a  new  election  held  for  coun- 
cillor, or  (if  the  office  be  filled)  by  a  quo  warranto:  lb.  The  voting  papers 
(corresponding  in  function  to  the  American  ballot,  except  that  it  is  to  be 
signed  by  the  voter  and  openly  voted)  must  distinguish  between  different 
classes  of  candidates ;  and  hence  where  an  election  of  four  councillors  had 
taken  place  on  the  1st  of  November,  three  of  whom  were  to  supply  ordinary 
vacancies,  and  one  an  extraordinary  vacancy,  but  no  distinction  had  been 
made  between  them  in  the  notice  of  election,  in  the  voting  papers,  or  in 
publishing  the  names  of  the  persons  elected,  the  election  was  irregular  and 
void :  Regina  v.  Rowley,  3Q.B.  143 ;  S.  C.  in  Exchequer  Chamber,  6  Q.  B. 
668.  See  Sec.  47,  Municipal  Corporations  Act,  and  also  7  Will.  IV.  and  1 
Vict.  Chap.  LXXVIII.  Sec.  11.  Patterson,  J.,  says  :  "  There  is  no  objection  to 
the  votes  all  being  given  on  the  same  paper,  if  a  proper  distinction  were 
made:"  Regina  v.  Rowley,  supra;  and  see  Rex  v.  Winchester,  2  Ad.  &  E. 
215.  By  the  Municipal  Corporations  Act,  Sec.  32,  the  voting  paper  is  re- 
quired to  contain  "the  Christian  and  surnames  pf  the  persons  for  whom  the 


CH.  IX.]  MUNICIPAL   POPULAR   ELECTIONS CONTEST.  179 

§  138.  Receiving  illegal  or  improper  votes  will  not  alone 
vitiate  an  election.  It  must  be  shown  affirmatively,  in  order 
to  overturn  the  declared  result,  that  the  wrongful  action 
changed  it.  This  rule  applies  to  corporation  elections  as  well 
as  others.1 

Special  Tribunal  to  Decide  Election  Contests  for  Municipal  Offices. 

§  139.  A  constitutional  provision  that  the  judicial  power  of  the 
state  shall  be  vested  in  a  supreme  and  inferior  courts,  does 
not  disable  the  legislature,  in  creating  municipal  corporations, 
from  providing  that  the  city  council  shall  be  the  judge  of  the  elec- 
tion of  its  mayor,  members,  and  other  officers,  and  from  pro- 
hibiting the  ordinary  courts  of  justice  from  inquiring  into"  the 
validity  of  the  determination  of  the  city  council.2 

burgess  votes,  with,  their  respective  places  of  abode,  such  voting  paper  being 
previously  signed  with  the  name  of  the  burgess  voting  and  the  name  of  the 
street  in  which  the  property  for  which  he  appears  to  be  rated  is  situate." 
In  construction  of  this  section,  it  is  held  that  the  Christian  name  of  the 
person  voted  for  need  not  be  written  out  in  full ;  the  contraction  ordinarily 
used  is  sufficient :  Regina  v.  Bradley,  3  E.  &  E.  634.  But  it  seems  that  an 
initial  letter  only  would  not  be  sufficient :.  lb.  Though  it  would  be  in  the 
signature  of  the  voter :  Regina  v.  Avery,  18  Q.  B.  576 ;  Regina  v.  Tart,  1  E. 
&  E.  618.  "Places  of  abode"  held  to  mean  places  of  residence,  not  of  busi- 
ness :  Regina  v.  Hammond,  17  Q.  B.  772 ;  Regina  v.  Deighton,  5  Q.  B.  896 ; 
Dav.  &  M.  682. 

1  Ex  parte  Murphy,  7  Cow.  153, 1827 ;  People  v.  Cicotte,  16  Mich.  283, 1868 ; 
First  Parish  v.  Stearnes,  21  Pick.  148;  Johnston  ».  Charleston,  1  Bay  (S.  C), 
441,  1795.  In  this  last  case  the  city  council  was  specially  authorized  to 
judge  of  elections  of  corporation  officers,  and  the  court,  respecting  a  contest 
before  the  council,  said :  "  If  the  bad  votes  be  deducted  from  the  highest 
candidate,  and  he  still  has  a  majority,  his  election  is  good;  but  if,  after 
such  deduction,  the  next  candidate  has  an  equal  or  greater  number  of 
votes  than  the  other,  and  it  is  doubtful  which  candidate  had  the  greatest 
number  of  valid  votes,  the  council  should  send  the  matter  back  to  the 
people." 

8  Mayor,  &c.  v.  Morgan,  7  Martin,  La.  (O.  S.)  1;  9  ib.  (N.  S.)  381,  1828; 
infra,  Sec.  182.  In  Wammacks  v.  Holloway,  2  Ala.  31,  1841,  a  shrievalty 
contest,  it  was  denied  that  it  was  within  the  constitutional  power  of  the 
legislature  to  deprive  a  party  claiming  a  public  office  of  the  right  to  a  jury 
trial  by  making  the  summary  or  extra-judicial  method  conclusive.  And  to 
this  effect  was  the  opinion  of  two  of  the  judges  in  The  People  v.  Cicotte,  16 
Mich.  283.  Since  elections  to  offices  are  not  in  the  nature  of  contracts, 
there  does  not  seem  to  be  any  substantial  reason,  in  view  of  the  plenary 


180  MUNICIPAL  CORPORATIONS.  [CH.  IX. 

§  140.  "Where,  by  the  charter,  the  council  are  authorized 
to  provide,  by  ordinance,  a  special  tribunal  before  which  con- 
tested municipal  elections  shall  be  tried,  and  to  provide  the 
mode  of  procedure,  it  may  pass  such  ordinance  after  an  elec- 
tion has  been  held,  and  authorize  it  to  determine  contests 
arising  out  of  a  previous  election.  After  such  determination, 
quo  warranto  will  lie  against  the  party  who  was  unsuccessful 
before  the  local  tribunal,  if  he  continue  to  claim  and  exercise 
the  office^1 

§  141.  Common  law  courts  of  general  and  original  jurisdiction 
have  the  admitted  power  to  inquire  into  the  regularity  of 
elections,  corporate  and  others,  by  quo  warranto,  or  an '  in- 
formation in  that  nature,  and,  in  certain  cases,  by  mandamus. 
It  is  not  unusual  for  charters  to  contain  provisions  to  the 
effect  that  the  common  council  or  governing  body  of  the  mu- 
nicipality "shall  be  *he  judge  of  the  qualifications,"  or  "of 
the  qualifications  and  election  of  its  own  members,"  and  of 
those  of  the  other  officers  of  the  corporation.  What  effect  do 
provisions  of  this  kind  have  upon  the  jurisdiction  of  the  supe- 
rior courts?  The  answer  must  depend  upon  the  language  in 
which  these  provisions  are  couched,  viewed  in  the  light  of  the 
general  laws  of  the  state  on  the  subjects  of  contested  elections 
and  quo  warranto.  The  principle  is,  that  the  jurisdiction  of 
the  courts  remains  unless  it  appears  with  unequivocal  cer- 
tainty that  the  legislature  intended  to  take  it  away.  Lan- 
guage like  that  quoted  above  will  not,  ordinarily,  have  this 
effect,  but  will  be  construed  to  afford  a  cumulative  or  primary 
tribunal  only,  not  an  exclusive  one.  A  provision  that  no 
court  should  take  cognizance  of  election  cases  by  quo  warranto, 
&c.  would  doubtless  be,  sufficient  to  divest  the  jurisdiction  of 
the  judicial  tribunals.     And  so,  perhaps,  of  a  provision  that 

authority  of  the  legislature  over  offices  and  officers,  to  doubt  its  power  to 
provide,  prospectively,  by  a  general  act,  the  mode  in  which  contests  shall 
be  determined.  See' State  v.  Fitzgerald',  44  Mo.  425,  1869;  Ewing  v.  Filley, 
43  Pa.  St.  384;  Commonwealth  v.  Leech;  44  Pa.  St.  332;  Cooley,  Const.  Lira. 
276;  ib.  623,  624,  note;  Smith  ».  New  York,  37  N.  Y.  518;  People  v.  Maha- 
ney,  13  Mich.  481. 

1  State  v,  Johnson,  17  Ark.  407, 1856  (mayoralty  contest). 


CH.  IX. J  MUNICIPAL   POPULAR   ELECTIONS  —  CONTEST.  181 

the  council  should  have  the  sole,  or  the  final,  power  of  deciding 
elections.1 

§  142.  Agreeably  to  the  rule  just  stated,  a  clause  in  the 
charter  of  a  municipal  corporation,  that  the  city  council 
"  shall  be  the  judges  of  the  election,  returns  and  qualifications 
of  their  own  members,  and  of  all  other  officers  of  the  corpora- 
ration,"  was  held  by  the  Supreme  Court  of  Delaware  not  to 
oust  the  Superior  Court  of  the  state  (invested  with  the  usual 
powers  of  the  King's  Bench)  of  its  superintending  jurisdiction 
over  corporations,  and  it  was  declared,  if  the  council  should 
erroneously  decide  that  a  person  duly  elected  by  the  people  to 
an  office  was  not  qualified  to  hold  it,  a  mandamus  might  issue 
commanding  them  to  admit  him  to  the  office.2 

1  Ex  parte  Heath,  3  Hill  (N.  Y.),  42,  52,  and  cases  cited  by  Cowen,  J.,  who 
is  of  opinion  that  no  mere  negative  words,  and  that  nothing  less  than 
express  words,  will  oust  the  supervisory  jurisdiction  of  the  courts.  Greer  v. 
Shackelford,  Const.  Eep.  642;  State  v.  Fitzgerald,  44  Mo.  425,  1869;  Com- 
monwealth v.  McGloskeyy  2  Eawle,  369  (two-judges  dissenting);  Ex  parte 
Strahl,  16  Iowa,  369,  1864;  State  «.  Funck,  17  Iowa,  365,  1864;  Bateman  v. 
Megowan,  1  Met.  (Ky„)  533;  Wammacks  v.  Holloway,  2  Ala.  31,  1841  (sher- 
iffalty contest) ;  Hummer  o.  Hummer,  3  G.  Greene  (Iowa),  42;  Macklot  v. 
Davenport,  17  Iowa,  379;  State  v.  Mario w,  15  Ohio  St.  114;  post,  chapters  on 
•Qwo  Warranto,  Mandamus,  and  Remedies  against  Illegal  Corporate  Acts. 
Action  of  board  of  canvassers  not  conclusive  of  the  right  of  the  party  to  an 
office,  though  it  may  deprive  him,  in  the  first  instance,  of  a  commission  or 
certificate.  Quo  warranto  lies  notwithstanding  the  determination  of  the 
fooaTd  of  canvassers,  on  which  full  investigation  may  be  had.  State  v. 
Governor,  1  Dutch. JN.  J.)  331,  1856;  State  v.  The  Clerk,  ib.  354;  People  v. 
Kilduff,  15  111.  492;  Cooley,  Const.  Lim.  623,  and  cases^  cited;  Hadley  v. 
Mayor,  33  N.  Y.  603, 1865. 

A  special  remedy  given  by  statute  is  cumulative  and  not  exclusive  of  the  or- 
dinary jurisdiction  of  the  courts,  unless  such  be  the  manifest  intention  of 
'the  statute :  Attorney  General  v.  Corporation  of  Poole,  4  Mylne  &  Cr.  17, 
overruling  2  Keen,  190.  See,  also,  Attorney  General  v.  Aspinwall,  2  Mylne 
<&  Cr.  613.  And>  hence  a  breach  of  a  public  trust  by  a  municipal  corpora- 
tion is  held,  in  England,  to  be  cognizable  in  chancery,  notwithstanding  a 
special  appeal  be  given  in  the  particular  matter  to  the  lords  of  the  treas- 
ury. Ib.;  Parr  v.  Attorney  General,  8  CI.  &  F.  4<0§;  Attorney  General  v. 
Corporation  of  Lichfield,  11  Beav.  120.  See  chapter  on  Remedies  against 
Illegal  Corporate  Acts,  post. 

3  State  v.  Wilmington,  3  Harring.  (Del.)  294, 1840 ;  S.  P.  State  v.  Fitzgerald, 
44  Mo.  426, 1869.  So,  in  Iowa,  where  the  city  charter  provided  that  the; 
■council  should  be  "the  judge^  of  the  election  and  qualifications  of  its  own 
members,"  but  no  ordinance  had.  been,  passed  prescribing  any  method  pf 


182  MUNICIPAL    CORPORATIONS.  [CH.  IX. 

§  143.  "Where  the  legislative  intent  is  clear,  that  the  action  of 
the  council  in  contested  election  cases  shall  be  final,  the  courts 
will  not  inquire  into  election  frauds,  since  the  council  is  the 
judge  of  this  matter  as  of  others  pertaining  to  the  election ; 
but  the  courts  will  inquire  whether,  in  point  of  law,  there  was 
an  office  or  vacancy  to  be  filled.1 

§  144.  Where,  by  statute,  the  returns  of  all  municipal  elec- 
tions were  declared  to  be  "  subject  to  the  inquiry  and  determi- 
nation of  the  Court  of  Common  Pleas  upon  the  complaint  of 
fifteen  or  more  voters  filed  in  said  court  within  twenty  days, 
and  the  court,  in  judging  of  such  elections,  was  directed  to 
procceed  upon  the  merits  thereof,  and  determine  finally  concern- 
ing the  same  according  to  the  laws  of  the  commonwealth," 
this  was  held  to  exclude  the  remedy  by  quo  warranto  and  all 
common  law  remedies  as  to  matters  which  might  have  been 
investigated  in  the  special  mode  prescribed  by  the  statute. 

trial,  it  was  held  that  the  mere  provision  in  the  charter  did  not  preclude  a 
contestant  from  a  resort  to  an  information  in  the  nature  of  a  quo  warranto  : 
State  v.  Funck  (mayoralty  contest),  17  Iowa,  365,  1864.  In  a  previous  case, 
the  same  court  decided  that  under  a  charter  making  the  council  "  judges  of 
the  election,  returns  and  qualifications  of  their  own  members,"  it  was  com- 
petent for  the  council  to  pass  a  general  ordinance  providing  for  the  trial  of 
contested  elections  of  city  officers,  and  making  the  council  the  tribunal  for 
the  trial  of  the  same,  such  an  ordinance  being  consistent  with  the  general 
laws  of  the  state,  which,  in  providing  special  tribunals  for  contesting  state, 
county,  and  township  offices,  omitted  to  make  any  specific  provision  for 
contested  elections  to  municipal  offices :  Ex  parte  Strahl,  16  Iowa,  369, 
1864  (mayoralty  contest). 

1  Commonwealth  v.  Leech,  44  Pa.  St.  332,  1863 ;  Commonwealth  v. 
Meeser,  ib.  341.  Construction  of  words  making  the  number  of  members 
of  the  council  from  a  ward  depend  upon  "  the  list  of  the  taxable  inhabi- 
tants." lb.  People  v.  Wetherell,  14  Mich.  48 ;  Tompert  v.  Lithgow,  1  Bush 
(Ky.),  176,  1866. 

Pending  legal  proceedings,  the  court  in  favor  of  the  officer  apparently 
entitled,  enjoined  the  adverse  claimant  from  attempting  to  take  possession  of 
the  office :  Ewing  «.  Thompson,  43  Pa.  St.  384,  1862 ;  Kerr  v.  Trego,  47  Pa. 
St.  16,  292,  1864.  Certificate  of  election  is  the  prima  facie  written  title  to 
office,  and  remains  so  until  regularly  set  aside  or  annulled :  Ib. 

The  council,  as  board  of  canvassers,  cannot  investigate  the  legality  of  an 
election,  but  are  concluded  by  the  returns  of  the  judges ;  but  the  council, 
when  sitting  as  a  tribunal  to  judge  of  the  election  of  members  of  their 
body,  may  go  behind  the  returns  and  inquire  into  the  fact  as  to  who  is 
elected  :  State  v.  Railway,  33  N.  J.  Law,  111,  1868. 


CH.  IX.]  MUNICIPAL   POPULAR   ELECTIONS  —  CONTEST.  183 

The  opinion  was  expressed  that  the  judgment  of  the  Common 
Pleas  was  final ;  that  it  could  not  be  reversed  by  quo  warranto 
or  in  any  other  collateral  manner,  and  that  even  a  certiorari 
would  enable  the  Appellate  Court  to  examine  only  the  regu- 
larity of  the  proceedings  of  the  Common  Pleas,  but  not  to 
examine  the  case  on  its  merits  as  disclosed  in  the  evidence.1 

1  Commonwealth  v.  Garrigues,  28  Pa.  St.  9, 1857 ;  Commonwealth  t.  Bax- 
ter, 35  Pa.  St.  263 ;  Commonwealth  v.  Leech,  44  Pa.  St.  332 :  Followed  and 
approved,  State  v.  Marlow,  15  Ohio  St.  114 ;  see  Ewing  v.  Filley,  43  Pa.  St.  386 ; 
Lamb  v.  Lynd,  44  Pa.  St.  336.  Function  and  powers  of  common  council  as 
election  canvassers :  Morgan  v.  Quackenbush,  22  Barb.  72.  A  city  council, 
under  authority  "  to  canvass  returns  and  determine  and  declare  the  result " 
of  elections  to  municipal  offices,  exhausts  its  power  when  it  has  once  legally 
canvassed  the  returns  and  declared  the  result,  and  it  cannot,  at  a  subse- 
quent meeting,  make  a  re-canvass  and  reverse  its  prior  determination :  Had- 
ley  v.  Mayor,  33  N.  Y.  603,  1865.  The  rule  stated  in  the  text,  that  the  orig- 
inal or  superintending  jurisdiction  of  the  Superior  Courts  should  not  be 
held  to  be  taken  away  by  any  language  which  does  not  expressly,  or  by 
unequivocal  implication,  show  this  to  have  been  the  legislative  intention, 
is  a  salutary  one,  but  seems,  in  some  cases,  not  to  have  been  very  strictly 
observed.  In  Texas,  where  the  statute  conferred  upon  the  County  Court 
the  power  to  determine  contested  elections  of  county  officers,  and  gave  no 
right  to  appeal,  it  was  considered  to  be  the  policy  of  the  statute  to  secure 
an  early  determination  of  such  disputes,  and  it  was  held  that  the  judgment 
of  the  County  Court  could  not  be  revised  either  upon  appeal  or  certiorari, 
and  was  final :  O'Docherty  v.  Archer,  9  Texas,  295,  1852.  Post,  Chap.  XXII. 

The  constitution  of  Ohio  requires  the  general  assembly  "  to  determine,  by 
law,  before  what  authority,  and  in  what  manner,  the  trial  of  contested! 
elections  shall  be  conducted,"  and  accordingly  a  specific  mode  of  contesting 
elections  in  that  state  was  provided  by  statute ;  and  this  mode  was  held  to 
exclude  the  common  law  mode  by  proceedings  in  quo  warranto,  and  the  re- 
sult to  bind  the  state  as  well  as  individuals :  State  v.  Marlow,  15  Ohio  St. 
114,  1864. 

In  South  Carolina  it  was  held,  where  the  legislature  had  authorized  man- 
agers of  elections  "  to  hear  and  determine  "  cases  of  contested  elections, 
without  making  any  provision  for  an  appeal,  or  any  reference  in  the  act  to 
proceedings  by  quo  warranto,  that  their  decision  was,  without  any  express 
statutory  declaration  to  that  effect,  final  and  conclusive,  and  that  courts  had 
no  control  over  it :  Grier  v.  Schackelford,  3  Brev.  (South  Car.)  491,  1814- 
( Nott,  J.,  dissenting) ;  followed  in  the  State  v.  Deliesseline,  1  McCord, 
(South  Car.),  52, 1821  (two  judges  dissenting).  See  State  v.  Huggins,  Harper 
Law,  94,  1824.  But  note  remarks  of  Evans,  J.,  in  State  v.  Cockrell,  2  Rich. 
(South  Car.)  Law,  6,  who,  speaking  of  the  subsequent  act  of  1839  (requiring 
the  managers  to  hear  and  determine  the  validity  of  the  election,  and  pro- 
viding that  their  "  decision  shall  be  final "),  says :  "  I  take  it  to  be  clear 
that  the  validity  of  an  election,  in  all  cases,  must  [under  the  act],  in  the 


184  MUNICIPAL   CORPORATIONS.  [CH.  IX. 

Power  to  Oreate  and  Appoint  Municipal  Officers. 

§  145.  At' common  law,  municipal  corporations  may  appoint 
officers,  but  only  such  as  the  nature  of  their  constitution  re- 
quires. The  right  of  electing  such  officers  as  they  are  author- 
ized to  have  is  incidental  to  every  corporation,  and  need  not 
he  conferred  by  charter.-  The  power  of  appointing  officers  is, 
at  common  law,  to  be  exercised  by  the  corporation  at  large, 
and  not  by  any  select  body,  unless  it  is  so  provided  in  the 
charter.  The  powers  of  corporate  officers  proper,  at  common 
law,  are  very  limited,  extending  only  to  the  administration  of 
the  by-laws  and  charter  regulations  of  the  corporation.1 

§  146.  In  this  country  the  constitution  of  the  corporation 
usually  provides  with  care  as  to  all  the  principal  officers,  such  as 
mayor,  aldermen,  marshal,  clerk,  treasurer,  and  the  like,  and 

first  instance,  be  derided  by  the  Court  of  Managers  duly  organized  accor- 
ding to  law.  All  questions,  whether  of  law  or  fact,  must  be  submitted  to 
this  tribunal.  Their  decisions,  on  questions  of  fact,  must  necessarily  be 
final,  as  no  appeal  is  given ;  but  I  do  not  mean  to  say  that  their  errors  of 
law  may  not  be  corrected  by  certiorari,  or  such  of  the  prerogative  writs  as 
may  be  best  suited  to  the  case."  Accordingly,  where  an  election,  within 
the  act,  had  not  been  contested  before  the  managers,  the  court  refused 
leave  to  file  an  information  in  the  nature  of  a  quo  warranto.  It  was  after- 
wards stated,  by  a  distinguished  judge  in  that  state,  that  the  scrutiny  of 
mnunicipal  elections,  as  an  incidental  power,  belongs,  in  the  first  place,  to 
ithe  city  council,  and  if  they  abuse  that  power,  the  correction  of  that  abuse 
(devolves  upon  the  courts  by  information  in  the  nature  of  a  quo  warranto : 
uPer  WNeall,  J.,  in  State  v.  Schnierie,  5  Rich.  Law  (South  Car.),  299,  301,1852 
i(  Qtiio.  War.  to  test  validity  of  defendant's  election  as  mayor  of  Charleston). 
S.  P.  Johnson  v.  Charleston,  1  Bay  (South  Car.),  441,  1795.  But  the  city 
eommcil,  in  order  to  determine  a  contest  for  a  municipal  office,  cannot  swear 
the  individual  voters  to  compel  them  to  declare  for  whom  they  voted.  This 
is  an  inquisitorial  power  unknown  to  the  principles  of  our  governnent,  and 
of  dangerous  tendency :  Ib.  See,  also,  People  v.  Pease,  27  N.  Y.  81 ;  People 
v.  Cicotte,  16  Mich.  283 ;  Cooley,  Const.  Lim.  604-606.  Election  contests  for 
office  will  not  be  determined  on  habeas  corpus:  Ex  parte  Strahl,  16  Iowa, 
36S ;  nor,  in  general,  on  bill  in  equity :  Hagner  v.  Heyberger,'  7  Watts  &  S. 
104;  but  see  Kerr  o. .Trego,. 47  Pa..  St.  292;  Hughes  v.  Parker,  20  N.  H.  58; 
Coehran  e.  McCleary,  22  Iowa,  75, 1867,  and  chapter  on  Corporate  Meetings, 
post.  But  as  to  county  seat  contest,  where  fraud  is  alleged,  see  Brown  v. 
Smith,  46  111.    See,  also,  Chap.  XXII.  post. 

1  Willc.  234,  pi.  598  ;  ib.  297,  pi.  767 ;  ib.  298,  pi.  769 ;  Glover,  220 ;  Vint- 
ners v.  Passey,  1  Bnrr.  237 ;  Hasting's  Case,  1  Mod.  24 ;  Rex  v.  Barnard, 
Comb.  416. 


CH.  IX.J        CREATION    AND   APPOINTMENT   OF    OFFICERS.  185 

prescribes  their  various  duties.  This  leaves  but  little  necessity 
or  room  for  the  exercise  of  any  implied  power  to  create  other 
offices  and  appoint  other  officers.'  It  is  supposed,  however, 
when  not  in  contravention  of  the  charter,  that  municipal  cor- 
porations may,  to  a  limited  extent,  -have  an  incidental  right  to 
create  certain  minor  offices  of  a  ministerial  or  executive  nature. 
Thus,  if  power  be  conferred  to  provide  for  the  health  of  the 
inhabitants,  this  would  give  the  corporation  the  right  to  page 
ordinances  to  secure  this  end,  and  the  execution  of  such  ordi- 
nances might  be  committed  to  a  health  officer,  although  no 
such  officer  be  specifically  named  in  the  organic  act,  if  this 
course  would  not  conflict  with  any  of  its  provisions.  But  the 
power  to  create  offices  even  of  this  character  would  be  limited 
to  such  as  the  nature  of  the  duties  devolved  on  the  corpora- 
tion naturally  and  reasonably  required. 

The  provisions  of  the  charter  as  to  time  and  mode  of  elec- 
tion, the  appointment,  qualifications,  and  duration  of  the  terms 
of  officers,  must  be  strictly  observed.  Therefore,  an  ordinance 
which  makes  eligible  those  who,  by  the  charter,  are  not  so,2 

1  Where  it  ,was  manifest,  from  the  whole  tenor  of  a  city  charter,  that  it 
was  the  intention  of  the  legislature  itself  to  specify  therein  all  the  offices, 
and  designate  all  the  officers  to  be  elected  or  chosen,  and  to  regulate  the 
mode  of  appointment,  it  was  held  that  the  city  council  could  not,  by  virtue 
of  an  inherent  or  implied  power,  create  another  officer,  fix  his  term,  provide 
for  his  appointment,  and  clothe  him  with  the  powers  of  a  municipal  officer : 
Hoboken  v.  Harrison,  1  Vroom  (N.  J.),  73,  1862.  It  is  said,  in  the  opinion, 
that  the  power  to  create  municipal  offices  should  be  expressly  conferred. 
In  New  Jersey,  pound-keepers,  from  a  very  early  period,  had  been  public 
township  officers,  elected  in  the  same  way  as  other  officers  of  the  township. 
Under  these  circumstances  it  was  held  that  a  municipal  corporation  could 
not,  without  express  authority  therefor,  establish  another  public  pound 
within  the  limits  of  the  township,  and  prescribe  regulations  and  fees  vari- 
ant from  those  prescribed  by  the  general  law ;  and  it  was  further  held,  that 
the  office  of  pound-keeper  could  not  be  considered  as  one  essential  to  the 
business  of  the  corporation ;  nor  is  a  pound-keeper  one  of  those  subordi? 
nate  officers  which  all  municipal  corporations  may,  as  of  course,  appoint. 
It  was,  however,  admitted  by  the  court,  that  where  such  a  corporation  has 
power  to  do  an  act,  it  has  the  incidental  power  to  appoint  persons  to  carry 
it  into  effect:  White  v.  Tallman,  2  Dutch.  (N.  J.)  67,  1856.  Authority  to  a 
municipal  corporation  to  appoint  an  officer  was  inferred  from  the  frequent 
mention  of  the  office  and  its  duties  in  the  charter :  People  v.  Bedell,  2  Hill 
(N.  Y.),  196 ;  see,  also,  Field  v.  Girard  College,  54  Pa.  St.  233. 

1  Rex  v.  Mayor  of  Weymouth,  7  Mod.  373  ;    Rex  v.  Bumstead,  2  B.  &  Ad. 
699 ;  Rex  v.  Spencer,  3  Burr.  1827  ;  Rex  v.  Chitty,  5  Ad.  &  E.  609. 
24 


188  MUNICIPAL    CORPORATIONS.  [CH.  IX. 

or  .which  abridges  the  term  of  officers  as  fixe<|  by  the  charter, 
is  unauthorized  and  void.' 

§  147.  Every  municipal  corporation  is  provided  with  an 
executive  head,  usually  styled  the  mayor.  In1  the  chapter  on 
Corporate  Meetings  we  have  pointed  out  the  difference,  iu 
some  respects,  between  the  mayor  of  an  old  corporation  in 
England  and  the  officer  known  by  that  name  in  this  country. 
In  both  countries  the  mayor  is  the  head  officer  or  executive 
magistrate  of  the  corporation ;  but  with  us  it  is  important  to 
bear  in  mind  that  all  his  powers  and  duties  depend  entirely 
upon  the  provisions  of  the  charter  or  constituent  acts  of  the 
corporation,  and  valid  by-laws  passed  in  pursuance  thereof,  — - 
and  these  vary,  of  course,  in  different  municipalities.  It  is 
usually  made  his  duty,  however,  to  see  that/  municipal  ordi- 
nances are  executed,  and  to  preside  at  corporate  meetings;  and 
he  is  frequently  expressly  declared  to  be  a  member  of  the 
council  or  local  legislative  body.  Properly  and  primarily  his 
duties  are  executive  and  administrative,  and  not  judicial  or 
legislative.  But  judicial  duties  are  often  superadded  to  those 
which  properly  appertain  to  the  office  of  mayor,  and  he  is  in- 
vested with  the  authority  to  administer  not  only  the  ordinances 
of  the  corporation,  but  also,  judicially,  to  administer  the  laws 
of  the  state.2 

1  Stadler  v.  Detroit,  13  Mich.  346,  1865 ;  Vason  v.  Augusta,  38  Geo.  542, 
1868 :  chapter  on  Ordinances,  post.  The  office  of  treasurer  of  a  municipal 
corporation  is  not  a  "  civil  office  "  within  the  meaning  of  the  provision  of 
the  constitution  excluding  the  clergy  from  "  holding  any  civil  office  in  this 
state,  or  from  being  a  member  of  the  legislature  " :  State  v.  Wilmington,  3 
Harring.  (Del.)  294,  1840;  see  Commonwealth  v.  Dallas,  3  Yeates  (Pa.),  300. 
"  Lucrative  offices,"  in  the  constitutional  sense,  defined  to  embrace  county 
recorder,  commissioner,  township  trustee,  and  supervisor  :  Daily  v.  State,  8 
Blackf.  329 ;  Creighton  v.  Piper,  14  Ind.  182. 

*  Waldo  v.  Wallace,  12  Ihd.  569,  1859,  and  growing  out  of  it,  see,  also, 
Gulicks.  New,  14  ft.  93,1860;  Eeynolds  v.  Baldwin,  1  La.  An.  162,  1846; 
Muscatine  *.  Stock,  7  Iowa,  505 ;  2  ib.  220  ;  Ex  parte  Strahl,  16  Iowa,  369 ; 
Shafer  v.  Mumma,  17  Md.  331 ;  Slater  v.  Wood,  9  Bosw.  15.  Ante,  Chap. 
III.  Morrison  v.  McDonald,  21  Maine,  550,  1842 ;  State  v.  Maynard,  14  111. 
419;  Commonwealth  v.  Dallas,  3  Yeates  (Pa.),  300,  1801 ;  Starr  v.  Wilming- 
ton, 3  Harring.  (Del.)  294,  1839. 

Power  of  Mayor,  in  his  official  name,  to  bring  suit  to  prevent  or  restrain 
violations  of  law  by  other  municipal  officers  declared :  Genois,  Mayor,  &c. 


CH.  IX.]        CREATION   AND   APPOINTMENT    OF   OFFICERS.  187 

§  148.  The  office  of  mayor  has  long  existed  in  England,1  and 
many  of  its  general  features  have  heen  adopted  in  this  coun- 
try. In  a  former  page  suggestions  have  been  made  in  favor  of 
increasing  its  dignity  and  responsibility,  as  a  means  of  insuring 

7).  Lockett,  13  La.  545, 1838.  But  quxre?  The  mayor  of  a  city  has  no  inci- 
dental power  to  execute  an  appeal  bond  for  the  corporation ;  and  such  a 
bond  was  regarded  as  not  even  incidental  to  the  power  of  taking  an  appeal, 
but  must  be  authorized  by  the  council :  Baltimore  v.  Railroad  Co.  21  Md. 
50,  1863.  A  precept  to  collect  a  street  assessment,  signed  by  a  member  of 
the  council  acting  temporarily  as  president  thereof,  is  void,  when  the  stat- 
ute requires  the  signature  of  the  mayor :  Jeffersonville  v.  Paterson,  32  Ind. 
140,  1869.  Injunction  will  lie  to  restrain  a  sale  on  such  a  precept :  lb.  See 
chapter  on  Remedies  against  Illegal  Corporate  Acts,  post. 

As  to  nature  and  extent  of  authority  of  mayors  and  other  civil  officers  to 
employ  force  for  the  prevention  or  suppression  of  mobs,  riots,  &c. :  See  Ela 
v.  Smith,  5  Gray,  121,  1855,  arising  out  of  the  arrest  of  Anthony  Burns  as  a 
fugitive  slave.  Power  of  mayor  to  order  demolition  of  works  and  buildings 
in  public  places :  Henderson  v.  Mayor,  3  La.  563.  Mayor  may  sanction  an 
ordinance  passed  by  a  common  council  whose  term  has  expired :  Elmen- 
dorf  v.  Ewen,  2  N.  Y.  Leg.  Obs.  85.  Notice  to  mayor:  Nichols  v.  Boston,  98 
Mass.  39.  Police  and  executive  power  of  Mayor :  Shafer  v.  Mumma,  17  Md. 
331 ;  Slater  v.  Wood,  9  Bosw.  15 ;  Pedrick  8.  Bailey,  12  Gray,  161 ;  Nichols  v. 
Boston,  98  Mass.  39.  Alderman  acting  as  mayor :  State  v.  Buffalo,  2  Hill, 
434.  Judicial  power  of  mayor :  See  Municipal  Courts,  post.  Presence  and 
functions  of  mayor  at  meetings  Of  the  council :  See  the  chapter  on  Cor- 
porate Meetings,  post. 

1  History  and  nature  of  office  of  Mayor,  consult :  4  Jacob's  Law  Diet.  264, 
265;  2  Toml.  Law  Diet.  540;  2  Bouv.  150.  Spelm.  Gloss.  "Mayor;"  Ela  v. 
Smith,  5  Gray  (Mass.),  521,  1855;  Achley'ri  Case,  4  Abb.  Pr.  Rep.  35,  1856; 
Cochran  v.  McCleary,  22  Iowa,  75, 82,  1867  ;  Nichols  i>.  Boston,  98  Mass.  39 ; 
Fletchers.  Lowell,  15  Gray,  103.  The  office  in  England  is  quite  ancient; 
In  1204  King  John  made  the  bailiff  of  King's  Lynn  a  mayor,  with  adminis- 
trative powers.  The  title  was  a  common  one  as  early  as  the  time  of 
Bracton. 

Mr.  Norton,  in  his  valuable  "  Commentaries  on  the  History,  Constitution, 
and  Chartered  Franchises  of  the  City  of  London,"  says  that  the  first  specific 
grant  of  the  mayoralty  to  the  city  of  London  was  made  by  King  John  in  a 
charter  dated  on  the  9th  day  of  May,  in  the  sixteenth  year  of  his  reign, 
A.  D.  1207.  This -charter  declares  that  the  king  has  granted  and  confirmed 
to  the  barons  of  L,pndon  the  right  of  choosing  a  mayor  every  year,  and  at 
the  end  of  the  year  of  removing  him  and  substituting  another,  if  they  will, 
or  electing  the  same  again.  He  is  to  be  presented  to  the  king,  and  swear 
to  be  faithful  to  him.  The  use  of  the  word  confirmed,  in  this  charter,  shows 
that  the  name  and  officer  existed  before.  The  first  civic  magistrate  had 
begun  to  be  called  by  the  name  of  mayor  toward  the  end  of  the  reign  of 
his  predecessor,  Richard.  The  denomination  of  mayor,  it  is  said  on  the 
authority  of  Jegal  antiquaries,  can  be  traced  to  a  Very  far  date  among  the 


188  MUNICIPAL   CORPORATIONS.  [CII.  IX. 

more  satisfactory  municipal  rule;  but  the  subject  is  not  suffi- 
ciently connected  with  practical  law  to  warrant  more  than 
an  allusion  to  it  in  a  work  of  this  character.1 

§  149.  The  office  of  a  Police  Officer  is  not  known  to  the 
common  law;  it  is  created  by  statute,  and  such  an  officer  has, 
and  can  exercise,  only  such  powers  as  he  is  authorized  to  do 
by  the  legislature,  expressly  or  derivatively.2  Where  police 
officers  are,  by  statute,  invested  with  of  all  the  powers  of  con- 
stables, as  conservators  of  the  peace,  this  gives  them  authority 
to  arrest,  upon  view,  intoxicated  persons  while  guilty  of  dis- 
orderly conduct,  or  other  persons  violating  the  laws,  and  to 

German  and  French  nations  of  Europe.  The  chief  governor  of  the  town 
communities  which  arose  in  France  in  the  eleventh  century,  was  often  styled 
the  mayor.  It  is  a  matter  of  history,  that  in  France,  the  mayor  of  the  palace 
was  the  governor  of  Paris,  often  holding  sovereign  power,  and,  indeed,  in 
time,  usurping  it,  since  it  was  from  one  of  the  mayors  of  the  palace  that  the 
family  of  Charlemagne  descended.  And  it  is  suggested  by  Mr.  Norton  that 
the  term  mayor,  familiar  to  the  Normans,  may  have  been  originally, 
though  remotely,  derived  from  the  same  source :  Norton's  Com.  pp.  90, 
402,  403  ;  see,  also,  Pulling's  Laws,  Customs,  &c.  of  London,  Chap.  II.  16  m. 

1  Ante,  Chap.  I.  pp.  23,  24,  and  notes. 

2  Commonwealth  ».  Dugan,  12  Met.  233, 1847 ;  Commonwealth  v.  Hastings, 
9  Met.  259 ;  ante,  p.  76,  Sec.  33 ;  p.  78,  Sec.  34.  In  Massachusetts  they  are 
peace  officers,  and  a  person  who  assaults  or  obstructs  them  in  the  discharge 
of  their  duties,  is  indictable,  though  they  have  never  been  sworn  —  the 
statute  not  requiring  this:  Buttrick  v.  Lowell,  1  Allen,  172;  Mitchell  v. 
Rockland,  51  Maine,  118,  122.  In  The  People  v.  Metropolitan  Police  Board, 
19  N.  Y.  188,  1859,  growing  out  of  the  act  to  establish  a  Metropolitan  Police 
District,  it  was  decided  by  a  majority  of  the  Court  of  Appeals  that,  though 
the  office  was  a  new  one,  yet  the  mode  of  filling  it  not  being  provided  by 
the  constitution,  it  was  in  the  power  of  the  legislature  to  confer  it  upon 
persons  discharging  substantially  the  same  duties  within  a  more  limited 
territorial  jurisdiction,  and  to  dispense  with  an  oath  of  office.  See,  also, 
People  v.  Draper,  15  N.  Y.  532,  1857,  where  the  Court  of  Appeals  held  the 
"Act  to  establish  a  Metropolitan  Police  District"  valid;  approved,  Metro- 
politan Board  of  Health  v.  Heister,  37  N.  Y.  661, 1868 ;  McDermott  v.  Metro- 
politan Police  Board,  5  Abb.  Pr.  422;  Police  Commissioners  «.  Louisville,  3 
Bush  (Ky.),  597, 1868 ;  ante,  p.  77,  and  notes.  Extent  of  legislative  power 
and  control  over  appointment,  powers,  &c.  of  police,  health,  and  other  local 
officers:  Baltimore  v.  Board  of  Police  (Baltimore  Police  Act),  15  Md.  376, 
1859 ;  Metropolitan  Board  of  Health  o.  Heister,  37  N.  Y.  661,  1868  ;  People 
v.  Hurlburt,  Michigan  Supreme  Court,  1871  (not  yet  reported) ;  Police  Com- 
missioners «i  Louisville,  above  cited ;  ante,  pp.  76,  77.  Mode  of  compensa- 
tion :  Worcester  v.  Walker,  9  Gray,  78. 


CH.  IX.]        CREATION   AND   APPOINTMENT   OE    OFFICERS.  189 

detain  them  until  they  can  be  brought  before  a  magistrate.1 
If  such  an  officer  releases  an  intoxicated  person,  whom  be  had 
arrested  while  conducting  himself  in  a  disorderly  manner, 
upon  his  promise  to  go  directly  home,  he  may  lawfully  retake 
him,  on  his  going  into  a  bar-room  before  he  is  out  of  the  offi- 
cer's sight,  and  such  arrest  is  justified,  whether  it  be  regarded 
as  a  re-caption  for  the  original  purpose,  or  as  a  new  arrest  for 
disorderly  conduct  still  continuing.2 

§  150.  Charters  authorizing  municipal  officers  to  make  ar- 
rests upon  view,  and  without  process,  are  to  be  viewed  in  con- 
nection with  the  general  statutes  of  the  state,  and  being  in 
derogation  of  liberty,  are  strictly  construed;  hence  an  officer 
making  such  an  arrest,  though  on  the  Sabbath  day,  should, 
instead  of  imprisoning,  take,  without  unreasonable  delay,  the 
person  arrested  before  the  proper  tribunal  and  prefer  a  com- 
plaint against  him,  as  provided  by  the  statutes  of  the  state.3 

1  Taylor  *.  Strong,  3  Wend.  384,  1829 ;  Bacon  Ab.  Constable,  C. ;  Com- 
monwealth v.  Hastings,  9  Met.  259,  1845.  As  to  power  of  constables  in  such 
cases,  see  1  Hale,  P.  C.  587 ;  Hawkins,  P.  C.  Book  II.  Chap.  XIII.  Sec.  8. 
Where"  such  a  course  is  not  repugnant  to  the  general  law  of  the  state,  the 
proper  officers  of  a  municipal  corporation  may  be  authorized  to  arrest,  with- 
out warrant,  or  upon  view,  offenders  who  violate  ordinances  in  the  presence 
of  such  officers :  Bryan  v.  Bates,  15  111.  87,  1853 ;  Main  v.  McCarty,  15  111. 
442 ;  State  v.  Lafferty,  5  Harring.  (Del.)  491. 

Power  to  a  city  corporation  to  make  ordinances  for  the  security,  or  good 
order,  or  government  of  the  place,  and  to  appoint  or  elect  officers  to  carry 
out  ordinances,  authorizes  the  appointment  of  city  guards,  or  police  officers, 
or  peace  officers,  and  such  officers  may  arrest,  without  a  warrant,  persons 
engaged  in  breaches  of  the  peace :  City  Council  v.  Payne,  2  Nott  &  McCord 
(South  Car.),  475,  1820.  A  city  council  may  authorize  arrests  upon  view, 
without  warrant,  for  violation  of  its  by-laws,  when  not  inconsistent  with 
the  general  statutes  or  policy  of  the  state :  White  v.  Kent,  11  Ohio  St.  550, 
I860 ;  Thomas  v.  Ashland,  12  ib.  127.  But  not  otherwise.  Thus,  where  the 
city,  charter  declared  all  by-laws  inconsistent  with  the  general  law  to  be 
void,  and  where  the  general  law  did  not  allow  an  officer  to  arrest  for  a  mis- 
demeanor not  committed  in  his  presence,  without  a  warrant,  it  was  held 
that  an  ordinance  authorizing  police  officers  to  make  arrests,  without  a  war- 
rant, for  violation  of  ordinances  not  committed  in  their  presence,  was  void, 
and  would  not  protect  the  officer  against  a  suit  for  trespass :  Pesterfield  o. 
Vickers,  3  Coldw.  (Tenn.)  205,  1866. 

2  Commonwealth  v.  Hastings,  supra.  It  follows  that  an  obstruction 
offered  by  a  third  person,  to  the  officer  in  making  such  an  arrest,  would  be 
unjustifiable:  Ib. 

3  Low  v.  Evans,  16  Ind.  486, 1868  (action  for  false  imprisonment) ;  Pow  v. 
Becker,  3  Ind.  475, 1852;  Vandever  v.  Mattock,  3  Ind.  179.    In  Low  v.  EVan 


190  MUNICIPAL    CORPORATIONS.  [CH.  IX. 

§  151.  A  city  council  authorized  to  elect  certain  officers, 
may,  where  no  mode  of  election  is  prescribed,  appoint  them 
by  resolution,  and  is  not  bound  to  elect  them  by  ballot; '  and 
the  corporation  has  full  control,  unless  specially  restricted, 
over  all  offices  and  officers  existing  only  under  by-laws.2  A 
vote  of  an  authorized  committee  of  a  city,  electing  their  clerk 
city  engineer  for  a  year  from  a  subsequent  day,  duly  recorded, 
and  signed  by  him  as  their  clerk,  is  sufficient  to  take  his  ap- 
pointment out  of  the  -statute  of  frauds.3 

§  152.  The  same  presumptions  which  are  applicable  to  in- 
dividuals are,  in  general,  applicable  to  acts  of  corporations. 
Thus,  if  a  person  acts  notoriously  as  the  officer  of  a  corpora- 
tion, and  is  recognized  by  it  as  such  officer,  a  regular  appoint- 
ment will  be  presumed,  and  his  acts  will  bind  the  corporation, 
although  no  written  proof  is  or  can  be  adduced  of  his  appoint- 
ment.4 

it  was  also  held  that  there  was  no  authority  in  the  officer  making  the  ar- 
rest for  imprisoning  the  party  arrested  for  an  indefinite  time  (e.  g.  from 
Sunday  until  the  next  day),  because  he  may  be  subject  to  a  penalty,  to  be 
recovered  in  a  suit  in  the  nature  of  an  action  of  debt. 

1  Low  v.  Commissioners  of  Pilotage,  R.  M.  Charlt.  (Geo.)  302,  1830,  per 
Law,  J.  Ante,  p.  106,  Sec.  58.  Power  of  council  to  appoint,  and  when  it 
may  delegate  this  power  to  a  committee :  People  i>.  Bedell,  2  Hill  (N.  Y.), 
196;  Commonwealth  v.  Pittsburg  (police  force),  14  Pa.  St.  177,  1850;  Wilder 
v.  Chicago,  26  111.  182;  Russell  ».  Chicago  (collectors),  22  111.  285;  ante,  p. 
108,  Sec.  60.' 

2  As  to  plenary  power  and  control,  when  not  restricted,  of  a  municipal 
corporation  over  offices  and  officers  existing  only  under  ordinances,  see 
People  v.  Conover,  17  N.  Y.  64,  1858 ;  Waldraven  u.  Memphis  (right  to  abol- 
ish office),  4  Coldw.  (Tenn.)431, 1867;  infra,  Sec.  170.  The  power  to  appoint 
implies,  in  general,  the  power  to  remove  the  appointees :  People  v.  Hill,"  7 
Cal.  97.  Thus,  a  municipal  corporation  appointing  commissioners  in  cases 
of  local  improvements,  may  remove  them :  People  v.  Mayor,  &c.  of  New 
York,  5  Barb.  43,  1848.  The  exercise  of  the  power  to  appoint  to  office  is 
an  executive,  not  a  legislative,  act :  Achley's  Case,  4  Abb.  Pr.  35,  1856. 

3  Chase  i>.  Lowell,  7  Gray,  33,  1856. 

4  Bank  of  United  States  v.  Dandridge,  12  Wheat.  (U.  S.)  64,  70,  where 
Mr.  Justice  Story  cites  many  cases;  establishing  the  principle  "that  the 
acts  of  artificial  persons  afford  the  same  presumptions  as  the  acts  of  nat- 
ural persons." 


OH.  IX. J  OATH    AND    OFFICIAL    BOND.  191 

Oath  and  Official  Bond. 

§  153.  All  public  officers  are  usually  required  to  take  an 
oath  of  offi.ce,  and  those  entrusted  with  money  or  property  are 
also  generally  required  to  giee  bond  and  sureties  for  the  faithful 
performance  of  their  duties.  In  England  it  is  said  that  an 
oath  ot'  office  cannot  be  required  to  be  taken  by  a  by-law  when 
none  is  required  by  the  charter.1  But  in  this  country  the 
oath  of  office  is,  in  substance,  only  that  the  officer  will  support 
jthe  constitution  and  faithfully  perform  his  official  duties.  And 
fluch  an  oath  may,  doubtless,  be  required,  by  ordinance,  to  be 
taken  by  every  municipal  officer  before  entering  upon  his 
office.  Statutes  requiring  an  oath  of  office  and  bond  are 
usually  directory  in  their  nature;  and  unless  the  failure  to 
take  the  oath  or  give  the  bond  by  the  time  prescribed,  is" 
expressly  declared,  ipso  facto,  to  vacate  the  office,  the  oath  may 
be  taken  or  the  bond  given  afterwards,  if  no  vacancy  has  been 
declared.2 

1  Rex  v.  Dean,  &c.  1  Str.  539 ;  Glover,  305 ;  Willc.  133 ;  Grant,  76.  It  is 
the  settled  doctrine  of  the  Supreme  Court,  that  the  United  States,  being  a 
body  politic,  with  a  capacity  to  enter  into  contracts,  may,  within  the  sphere 
and  in  the  execution  of  its  appropriate  powers,  take  bonds  and  securities, 
which  are  not  prohibited  by  law,  though  such  bonds  and  securities  may  not 
have  been  prescribed  by  any  pre-existing  legislative  act.  These,  though 
voluntary, — that  is,  not  extorted  or  coerced, —  if  taken  for  a  lawful  purpose 
and  upon  a  good  consideration,  are  valid :  United  States  v.  Tingey,  5  Pet. 
(U.  S.)  114,  128,  1831,  approved,  Same  v.  Linn,  15  ib.  290, 1841 ;  and  see, 
Dugan  v.  United  States,  3  Wheat.  (U.  S.)  172 ;  United  States  v.  Bradley,  10 
Pet.  (U.  S.)  343.  Right  of  city  to  require  bond  of  indemnity  from  the 
owner,  who  proposes  to  excavate  sidewalk  to  make  cellars,  vaults,  or  im- 
provements :  McCarthy  v.  Chicago,  53  111.  38,  1870. 

1  Smith®.  Cronkhite,  8  Ind.  134;  State  s.  Findley,  10  Ohio,  51,  59,  and 
cases  cited;  State  v.  Porter  (failure  to  give  bond  by  city  marshal  in  time),  7 
Ind.  204 ;  Sprawl  v.  Laurence,  33  Ala.  674 ;  Bank  v.  Dandridge,  12  Wheat. 
64 ;  United  States  v.  Le  Baron,  19  How.  73 ;  S.  C.  4  Wall.  642 ;  Marbury 
v.  Madison,  1  Cranch.  137.  A  town  may  lawfully  require  a  collector  of  taxes 
or  other  officer,  to  furnish  sureties  for  the  faithful  discharge  of  the  duties 
of  his  office.  This  power  is  incidental,  and  need  not  be  express.  If  the 
person  chosen  neglects,  or  is  unable,  to  furnish  sureties,  this  amounts  to  a 
non-acceptance  of  the  trust,  although  he  has  taken  the  oath  of  office  : 
Morrell  v.  Sylvester,  1  Greenl.  248.  While  it  is  the  duty  of  an  officer  to 
perfect  his  title  to  his  office  by  complying  with  the  directions  of  the  law  as 
to  taking  oath,  depositing  bonds,  &c,  yet  his  failure  to  do  so  is  his  own 
wrongful  neglect,  and  is  no  defence  to  his  sureties  in  an  action  on  his  offi- 


192  MUNICIPAL   CORPORATIONS.  [CH.  IX. 

§  154.  When  the  statute  requires  a  prescribed  oath  of  office 
before  any  person  elected  "  shall  act  therein,"  a  person  cannot 
justify  as  such  officer  unless  he  has  taken  an  oath  in  substan- 
tial, not  necessarily  literal,  compliance  with  the  law.  Third 
parties,  however,  acting  in  good  faith  with  him  as  such  officer, 
are  protected,  notwithstanding  his  failure  to  take  the  requisite 
oath.1 

§  155.  The  principle  is  well  settled,  that  official  bonds  are 
valid  if  the  condition  complies  substantially  with  the  requirements 
of  the  statute.  The  exact  form  prescribed  is  not  essential 
unless  made  so  by  the  charter  or  act.2  As  such  bonds  are 
intended  to  secure  the  public  the  courts  do  not  favdr  technical 
defences.     Accordingly,  actions  have  been  sustained  on  bonds, 

cial  bond :    State  ».  Toomer,  7  Rich.  (South  Car.)  Law,  216,  1854 ;  State  t. 
Findley,  10  Ohio,  51,  1840. 

A  city  council,  whose  duty  it  is  to  decide  upon  the  sufficiency  of  the 
sureties  of  a  city  officer,  cannot  refuse  to  do  so  or  postpone  its  decision 
because  the  title  to  the  office  is  elsewhere  disputed,  and  a  mandamus  will 
lie  to  compel  it  to  act  upon  the  sufficiency  of  the  securities  offered :  Com- 
monwealth v.  City  Council  of  Philadelphia,  7  Am.  Law  Eeg.  (N.  S.)  362. 

1  Olney  v.  Pearce,  1  Rh.  Is.  292,  1850,  and  authorities  cited  by  Mr.  Angell 
in  note ;  Riddle  v.  Bedford  County,  7  Serg.  &.  Raw.  392 ;  Neale  v.  Overseers, 
5  Whart.  (Pa.)  538.  Where  an  officer,  before  acting,  is  required  to  qualify 
by  taking  an  oath  of  office,  he  has  no  legal  right,  until  he  qualifies,  to 
recover  fees  of  an  incumbent  received  after  the  plaintiff's  appointment  or 
election,  and  before  he  qualifies:  Thompson  v.  Nicholson,  12  Rob.  (La.)  326, 
1845.    See  City  v.  Given,  60  Pa.  St.  136. 

If  members  of  a  common  council,  who  are  required  by  the  charter  to  be 
sworn  before  they  enter  on  the  duties  of  their  office,  are  sworn  before  an 
officer  not  authorized  to  administer  the  oath,  they  are  still  officers  de  facto, 
and  a  tax  levied  by  them  is  not  invalid,  and  will  not  be  set  aside  even  in  a 
direct  proceeding :  State  v.  Perkins,  4  Zabr.  (N.  J.)  409,  1854. 

An  act  of  congress  provided  that  paymasters  should,  "previous  to  entering 
upon  the  duties  of  their  office,-give  good  and  sufficient  bonds,"  &c.  It  was  held, 
that  an  appointment  as  paymaster  was  complete  when  made  by  the  presi- 
dent and  confirmed  by  the  senate ;  that  the  giving  of  the  bond  was  a  mere 
ministerial  act  for  the  security  of  the  government,  and  not  a  condition  pre- 
cedent to  his  authority  to  act  as  paymaster ;  and  that  a  recital  in  the  bond 
of  the  appointment  estops  the  principal  and  sureties  to  deny  the  fact: 
United  States  v.  Bradley,  10  Pet.  (U.  S.)  343,  1836 ;  and  see,  also,  United 
States  v.  Dandridge,  12  Wheat.  64. 

2  Allegheny  County  v.  Van  Campen,  3  Wend.  49,  1829 ;  People  v.  Holmes, 
2  Wend,  281 ;  ib.  615 ;  Fellows  «.  Gilman,  4  Wend.  414 ;  Lawton  v.  Erwin,  9 
Wend.  233 ;  Cornell  v.  Barnes,  1  Denio,  35. 


[CH.  IX.  DURATION   OF   OFFICIAL   TERM.  193 

not  required  by  law,  when  executed  voluntarily,  and  with 
proper  conditions,  to  secure  the  performance  of  official  duty.1 
And  when  required  by  law  bonds  are  good,  as  common  law 
obligations,  though  they  do  not  conform  to  the  statute,  if  they 
contain  no  condition  contrary  to  law.  In  such  case  the  obligor 
voluntarily  agrees  to  make  the  obligee  named  a  trustee  for  the 
persons  interested  in  the  due  performance  of  the  condition.2 
Thus,  an  action  may  be  maintained  on  a  bond  given  to  the 
"selectmen"  instead  of  to  the  "town,"  by  a  town  treasurer, 
conditioned  for  the  faithful  performance  of  his  duties.3 

Duration  of  Official  Term. 

§  156.  It  was  a  settled  rule  of  law  respecting  the  old  cor- 
porations in  England  that  the  office  of  the  mayor  or  other  head 
officer  was  annual,  and  absolutely  expired  at  the  end  of  the 
year ;  and  that  without  an  express  clause  in  the  charter,  he 
could  not  hold  over  until  his  successor  was  provided.  The 
right,  in  such  case,  to  hold  over  did  not  exist  by  implication, 

1  Postmaster  General  v.  Rice,  Gilpin,  554 ;  Montville  v.  Haughton,  7 
Conn.  543 ;  Commonwealth  v.  Wolbert,  6  Binney,  292. 

2  Thomas  v.  White,  12  Mass.  369;  5  ib.  314;  Kavanaugh  v.  Sanders,  8 
Greenl.  442 ;  Sweetzer  v.  Hay,  2  Gray,  49,  and  cases  there  cited. 

*  Sweetzer  v.  Hay,  2  Gray,  49 ;  Horn  v.  Whittier,  6  N.  H.  88.  A  bond 
given  by  the  treasurer  of  a  county  for  the  faithful  performance  of  his  offi- 
cial duties,  to  the  board  of  supervisors  of  the  same  county,  is  a  good  and 
valid  bond,  notwithstanding  there  may  be  no  statute  requiring  one :  Super- 
visors v.  Coffinbury,  1  Mich.  355. 

Municipal  corporations  may  sue  on  official  bonds  of  public  officers  when 
interested  therein :  State,  &c.  v.  Norwood,  12  Md.  177,  1858.  In  an  action 
on  the  official  bond  of  an  officer  appointed  by  a  municipal  corporation, 
reciting  the  appointment  of  the  principal  as  such  officer,  neither  he  nor  his 
sureties  can  set  up  the  invalidity  of  his  appointment  as  a  defence  to  an 
action  for  moneys  collected :  Hoboken  v.  Harrison,  1  Vroom  (N.  J.),  73 ; 
Seiple  v.  Elizabeth,  3  Dutch.  407.  Sureties  on  official  bond  of  de  facto  munici- 
pal officer  are  liable  for  moneys  collected  by  him ;  and  this  though  he  was  an 
officer  which,  in  point  of  fact,  the  corporation  could  not  create :  1  Vroom, 
73,  supra.  A  surety  in  an  official  bond  of  an  officer  whose  term  is  limited 
to  a  year,  is  not  liable  beyond  the  year,  though  the  officer  continues  by  law 
until  a  successor  is  provided  :  Dover  v.  Twombly,  42  KT.  H.  59, 1860 ;  Glems- 
ford  Co.  v.  Demorest,  7  Gray,  1, 1856 ;  Mayor  v.  Horn,  2  Harring.  (Del.)  190, 
1833. 

25 


194  MUNICIPAL   CORPORATIONS.  [CH.  IX. 

and  was  not  an  incident  to  the  office.1  In  some  charters,  how- 
ever, it  was  in  terms  provided  that  the  mayor  or  other 
chief  officer,  though  elected  for  a  year,  should  hold  until  his 
successor  was  chosen.2  When  this  right  existed  it  was  fre- 
quently abused,  by  neglecting  to  hold  an  election  on  the  char- 
ter day,  by  which  means  the  officer  continued  his  term.  It 
was  this  abuse  that  gave  rise  to  the  Statute  of  Anne,  which 
enacted  "that  no  person  in  such  animal  office  for  one  whole 
year,  should  be  capable  of  being  chosen  into  the  same  office 
for  the  year  immediately  ensuing,"  and  imposed  a  fine  upon 
every  such  officer  who  "  should  voluntarily  and  unlawfully  ob- 
struct and  prevent  the  choosing  of  another  person  to  succeed 
into  such  office  at  the  time  appointed  for  making  another 
choice."3  Under  the  Municipal  Corporations  Act  the  provis- 
ion is,  that  the  mayor  shall  be  elected  each  year,  at  the  meet- 
ing fixed  for  the  ninth  of  November,  and  shall  "  continue  in 
his  office  for  one  whole  year,"4  and  by  an  amendment,  until 
his  successor  shall  have  accepted  the  office  of  mayor,  and  made 
and  subscribed  the  requisite  oath  ;5  and  subsequently,  the  stat- 
ute of  Anne  above  mentioned  was  repealed,  as  being  no  longer 
necessary.6 

§  157.  At  common  law,  the  office  of  an  alderman,  jurat,  capital 
burgess,  or  other  member  of  a  select  body,  is  a  franchise  for  life, 
though  by  prescription  or  charter  it  may  be  limited  to  a  defi- 
nite period,  but  the  office  was  so  much  in  the  nature  of  a  free- 
hold that  there  was  an  implied  right  to  hold  over,  unless  it 
was  otherwise  provided.7  So  with  respect  to  recorder,  town 
clerk,  and  the  like  officers,  the  duration  of  the  office  depended 
upon  the  particular  charter,  but  presumptively  it  was  not  lim- 

1  Rex  v.  Atkyns,  3  Mod.  12 ;  Rex  v.  Earle,  1  Str.  627 ;  Mayor  of  Durhams 
Case,  1  Sid.  33 ;  Rex.  v.  Thornton,  4  East.  308 ;  Foot  v.  Prowse,  1  Str.  625 ; 
S.  C.  3  Bro.  P.  C.  169 ;  Willc.  293  ;  Glover,  173. 

1  lb.  Rex  o.  Phillips,  1  Str.  394. 

3  9  Anne,  Chap.  XX.  Sec.  8. 

*  5  and  6  Will.  IV.  Chap.  LXX VI.  Sec.  49 ;  ante,  pp.  51,  52,  and  notes ;  Reg. 
v.  McGowan,  11  A.  &  E.  869. 

3  6  and  7  Will.  IV.  Chap.  CV.  Sec.  4. 

6  3  and  4  Vict.  Chap.  XLVII. 

'  Rex  v.  DonGaster,  2  Ld.  Raym.  1564 ;  Foot  v.  Prowse,  mpra, 


CH.  IX.]  DURATION    OF    OFFICIAL   TERM.  195 

ited,  and  their  offices  were  so  much  in  the  nature  of  a  freehold 
that  if  they  are  "eligible  for  a  year"  and  are  constituted  in 
general  terms,  they  do  not  expire  with  the  year,  hut  the  pos- 
sessors are  entitled  to  hold  over  until  others  are  elected.  But 
it  is  considered  that  if  they  are  "  eligible  for  a  year  only"  the 
office  ipso  facto  determines  on  the  expiration  of  the  year.1 

§  158.  In  this  country,  however,  a  public  office  is  not  consid- 
ered as  being  in  the  nature  of  a  grant  or  contract,  and  the  officer, 
as  against  the  public,  has  no  freehold  or  property  in  the  office ; 
and  it  is  almost  an  invariable  provision  of  law,  that  all  officers 
shall  be  elected  or  appointed  for  a  fixed  and  definite  period.  To 
guard  against  lapses,  sometimes  unavoidable,  the  provision  is 
almost  always  made  in  terms  that  the  officer  shall  hold  until  his ' 
successor  is  elected  and  qualified.  But  even  without  such  a  pro- 
vision, the  American  courts  have  not  adopted  the  strict  rule 
of  the  English  corporations,  which  disables  the  mayor  or  chief 
officer  from  holding  beyond  the  charter  or  election  day,  but 
rather  the  analogy  of  the  other  corporate  officers,  who  hold 
over  until  their  successors  are  elected,  unless  the  legislative 
intent  to  the  contrary  be  manifested.2  Thus,  in  Vermont  it  is 
held, — there  being  no  statute  to  the  contrary,  and  such  having 
been  the  practice, — that  school  officers  elected  at  the  annual 
meeting:  hold  over  until  others  are  elected  at  another  annual 
meeting,  whether  more  or  less  than  a  year  from  the  time  of 
their  election.3 

1  Willc.  296,  pi.  766 ;  Bex.  v.  Durham,  10  Mod.  147;  Dighton's  Case,  1  Vent. 
82. 

2  People  v.  Runkle,  9  Johns.  147 ;  Slee  v.  Bloom,  5  Johns.  Ch.  366, 378 ; 
2  Kent  Com.  238  ;  Kelsey  v.  Wright,  1  Root  (Conn.),  83  ;  Smith  v.  Nachez 
Steamboat  Co.  1  How.  (Miss.)  479;  Lynch  v.  Laffland,  4  Coldw.  (Tenn.)  96; 
South  Bay,  &c.  Co.  v.  Gray,  30  Maine,  547 ;  Elmendorf  v.  Mayor,  &c.  of  New 
York,  25  Wend.  693.    And  see  cases  infra. 

3  Chandler  v.  Bradish,  23  Vt.  416,  1851. 

"  The  better  opinion,"  says  Shaw,  C.  J.,  arguendo,  in  Overseers  of  Poor, 
&c.  v.  Sears,  22  Pick.  122,  130,  "is,  that  town  officers  annually  chosen,  hold 
their  offices  until  others  are  chosen  and  qualified  in  their  place.''  School 
District  v.  Atherton,  12  Met.  105,  1846 ;  Dow  v.  Bullock,  13  Gray,  136,  1859. 
So  in  Illinois :  People  v.  Fairbury,  51  111.  149, 1869.  So  in  Connecticut,  an 
officer  elected  for  " the  year  ensuing''  is,  in  the  absence  of  any  other  re- 
strictive provision,  entitled  to  hold  beyond  the  year,  and  until  he  is  super- 
seded by  the  election  of  another  person  in  his  place.    McCall  v.  Byram 


196  MUNICIPAL   CORPORATIONS.  [CH.  IX. 

§  159.  The  law  on  this  subject  has  been  thus  stated  by  a 
learned  American  judge :  "  Where,  in  the  charter  or  organic 
law  of  a  corporation,  there  is  an  express  or  implied  restriction 
upon  the  time  of  holding  office,  as  that  the  officers  shall  be 
annually  elected  on  a  particular  day,  and  that  they  shall  hold 
from  one  charter  (election)  day  till  the  next,  or  that  they  shall 
be  elected  '  for  the  year  ensuing  only,'  in  such  case  they  cannot 
hold  over  beyond  the  next  election  day  or  the  end  of  the  year."  l 
"  But  where,  by  the  constitution  of  the  corporation,  the  offi- 
cers are  elected  for  a  term,  and  until  their  successors  are  elect- 
ed and  qualified,  or  where  they  are  elected  '  for  the  year  ensu- 
ing,' and  the  charter  or  organic  law  contains  no  restrictive 
clause,  the  officers  may  continue  to  hold  and  exercise  their  offices, 
after  the  expiration  of  the  year,  until  they  are  superseded  hy 
the  election  of  other  persons  in  their  places."  2 

Manuf.  Co.  6  Conn.  428,  1827,  where  the  authorities  are  reviewed  and  com- 
mented on  by  Hosmer,  C.  J. ;  S.  P.  Cong.  Soc.  &c.  v.  Sperry,  10  Conn.  200 ; 
Weir  b.  Bush,  4  Litt.  (Ky.)  433,  where,  by  statute,  an  officer  holds  for  a 
given  term,  and  "until  his  successor  is  elected  and  qualified,"  he  con- 
tinues in  office  until  his  successor  is  duly  elected  and  qualified,  though  this 
(from  failure  to  elect,  or  from  other  causes,)  be  after  the  expiration  of  the 
term.  Stewart  v.  State,  4  Ind.  396,  1853 ;  Tuley  «.  State,  1  ib.  500,  515  ;  Ex 
parte  Lawhorne,  18  Gratt.  (Va.)  85. 

1  Tuley  i).  State,  1  Ind.  (Cart.)  500, 502, 1849,  per  Perkins,  J. ;  King  v.  May- 
or, &c.  6  Vin.  Abr.  296  ;  Corporation  of  Banbury,  10  Mod.  346  ;  Rex  v.  Pass- 
more,  3  Term  E.  199 ;  6  Petersd.  Abr.  738.  But  whether  a  provision  merely 
that  an  officer  shall  "  be  annually  elected  on  a  particular  day,"  is  an  implied 
restriction  that  he  shall  not  hold  over,  see  the  cases  in  Vermont,  Massachu- 
setts, New  York,  Illinois,  and  Connecticut,  above  cited.  The  weight  of  au- 
thority in  this  country  is  the  other  way.  Where  a  city  charter  gave  the 
mayor  power  to  hold  until  his  successor  was  elected  and  qualified,  but  de- 
nied this  power  to  the  members  of  the  city  council  by  providing  that  they 
should  be  elected  for  a  specified  term,  "  and  no  longer,"  and  that  their  seats 
should  be  vacated  at  the  end  of  such  term,  they  cannot  hold  over,  and 
their  action,  after  the  time  thus  fixed,  is  void,  and  does  not  bind  the  corpo- 
ration :  Louisville  v.  Higdon,  2  Met.  (Ky.)  526, 1859.  When  the  law  is  si- 
lent as  to  the  term,  but  requires  an  election  to  be  held  every  two  years,  an 
officer  holds  over  until  his  successor  is  provided  :  Cordiell  v.  Frizzell,  1 
Nevada,  130. 

2  Per  Perkins,  J.,  Tuley  v.  State,  "!  Ind.  (Cart.)  500,  502,  1849  (action  on  offi- 
cial bond  against  sureties).  Foot  v.  Prowse,  Str.  625 ;  Queen  v.  Durham,  10 
Mod.  146  ;  King  v.  Lisle,  Andrews,  163 ;  McCall  v.  Manufacturing  Company, 
6  Conn.  428 ;  9  ib,  536 ;  10  ib.  200 ;  17  ib.  588  ;  Kelsey  *.  Wright,  1  Root,  83 ; 
Weir  v.  Bush.  4  Litt.  (Ky.)  429 ;   People  a.  Runkle,  9  Johns.  147  ;   Vermon 


CH.  IX.]  VACANCIES   IN   MUNICIPAL   OFFICES.  197 

§  160.  As  against  the  public,  however,  officers  cannot  found 
a  valid  title  or  right  to  hold  over  upon  their  own  neglect  of  duty. 
Therefore,  where  the  charter  made  it  the  express  duty  of  the 
trustees  in  office  to  give  notice  of,  and  themselves  to  hold,  the  an- 
nual elections,  it  was  held,  that  if  they  omitted  to  discharge  this 
duty,  though  inadvertently,  in  consequence  of  which  omission 
there  was  and  could  be  no  election,  that  they  were  not  entitled 
to  hold  over,  although  by  the  charter  it  was  provided  that  they 
should  continue  in  office  until  a  new  election  should  be  made 
and  their  successors  should  qualify.1' 

Vacancies  in  Municipal  Offices. 

§  161.  At  common  law  there  must  be  a  vacancy  in  the  office 
existing  at  the  time  of  the  election  ;  "  for  one  cannot,"  says  Mr. 
"Willcock,  "  be  elected  to  a  corporate  office  in  reversion."  2 
And  the  same  doctrine  lias  been  recognized  in  this  country, 
and  a  vacancy  must  exist  before  an  election  to  fill  it  can  be  or- 
dered,3 and  an  election  to  fill  an  anticipated  vacancy  is  not 

Society- v.  Hills,  6  Cow.  23 ;  Slee  v.  Bloom.  5  Johns.  Ch.  366 ;  Pender  v. 
King,  6  Vin.  Abr.  296 ;  2  Kent  Com.  295,  note  b ;  Hicks  v.  Launcelot,  1  Rol. 
Abr.  513 ;  Bank  e.  Petway,  3  Humph.  (Tenn.)  522 ;  Stewart  v.  State,  4  Ind, 
396 ;  Bex.  v.  Poole,  Cas.  Temp.  Hardw.  23,  and  Phillips  v.  Wickham,  1 
Paige  Ch.  590,  were  considered  to  have  a  contrary  bearing.  It  was  decided, 
in  Beck  v.  Hanscom,  9  Fost.  (N.  H.)  213,  222,  1854,  that  where  the  charter 
or  incorporating  act  made  no  provision  for  the  continuance  of  corporate 
officers  in  office  after  the  expiration  of  the  term  for  which  they  were  elect- 
ed, they  could  not  hold  over  until  others  should  be  chosen  and  qualified : 
citing  the  opinion  of  Chancellor  Walworth,  in  Phillips  v.  Wickham,  1  Paige, 
590 ;  but  admitting  that  the  People  v.  Eunkle,  9  Johns.  147,  and  Trustees  «. 
Hills,  6  Cow.  23,  held  a  different  view.  In  People  v.  Tieman,  8  Abb.  Pr. 
359,  S.  C.  30  Barb.  193,  the  Supreme  Court,  at  special  term,  denied  that  the 
officer  himself  could  hold  over  unless  authorized  by  statute,  though  to  pro- 
tect the  public  his  acts  are  sustained.  Cocke  v.  Halsey,  1 6  Pet.  71. 

1  People  v.  Bartlett,  6  Wend.  422,  1831.  In  such  a  case,  being  trustees 
de  facto,  their  acts  woulc\  be  good.  And  their  title  would  also  be  good  except 
when  called  in  question  by  quo  warranto.  lb.  Lynch  v.  Laffland,  4  Coldw. 
(Tenn.)  96, 1867.  Validity  of  acts  of  officers  de  facto:  Peoples.  Stevens,  5 
Hill  (N.  Y.)  616,  per  Bronson,  J. ;  People  v.  Runkle,  9  Johns.  147 ;  Trustees 
v.  Hill,  7  Cow.  23 ;  Plymouth  v.  Painter,  17  Conn.  585  ;  Smith  v.  State,  19  ib. 
493  ;  People  v.  Bartlett,  6  Wend.  422 ;  State  ».  Jacobs,  17  Ohio,  143 ;  Hinton 
v.  Lindsay,  20  Geo.  746. 

2  Willc.  Corp.  207,  pi.  526 ;  Hob.  150 ;  Skin.  45 ;  Glover,  216. 

3  Lindsey  v.  Luckett,  20  Texas,  516;  Biddle  v.  Willard,  10  Ind.  62, 1857 ; 
People  v.  WethereU,  14  Mich.  48. 


198  MUNICIPAL    CORPORATIONS.  OH.  IX.] 

valid  unless  expressly  authorized  by  the  charter  or  statute.1 
Elections,  however,  in  advance  of  the  expiration  of  the  regular 
term  of  the  incumbent  of  an  office,  are  always  provided  for  and 
held,  but  such  cases  are  not  elections  to  vacancies  within  the 
meaning  of  the  rule  under  consideration. 

Refusal  to  Serve  in  Office. 

§  162.  It  is  an  established  common  law  principle,  that  since 
a  municipal  corporation  is  entitled  to  the  official  service  of  all 
of  its  eligible  members,  it  may,  by  virtue  of  its  inherent  or  in- 
cidental power,  pass  a  by-law  imposing  a  pecuniary  penalty 
upon  such  as  refuse,  without  legal  excuse,  an  office,  to  which 
they  have  been  duly  elected.2     The  ground  of  this  doctrine  is 

1  Biddle  v.  Willard,  supra.  In  this  case  it  was  said,  that  a  resignation  to 
take  effect  at  a  fixed  future  time  may,  if  no  new  rights  have  attached,  be 
withdrawn,  even  after  acceptance,  by  the  consent  of  the  party  accepting ; 
and  under  the  laws  of  that  state  it  was  held,  that  such  a  resignation  did  not 
create  a  vacancy  which  would  authorize  an  election  at  a  period  prior  to  the 
taking  effect  of  the  resignation. 

There  is  no  technical  or  peculiar  meaning  to  the  word  "  vacant,"  as  used 
in  the  constitution.  It  means  empty,  unoccupied ;  as  applied  to  an  office 
without  an  incumbent.  There  is  no  basis  for  the  distinction  urged,  that  it 
applies  only  to  offices  vacated  by  death,  resignation,  or  otherwise.  An  ex- 
isting office,  without  an  incumbent,  is  vacant,  whether  it  be  a  new  or  an 
old  one :  "  Per  Stuart,  J.,  Stocking  v.  State  (vacancy  in  new  judicial  circuit), 
7  Ind.  326,  1855 ;  followed,  Collins  e.  State,  8  ib.  344,  1856. 

2  City  of  London  v.  Vanacker,  1  Ld.  Raym.  496 ;  S.  C.  Carth.  482  ;  S.  C. 
12  Mod.  272 ;  1  Salk.  142  ;  Rex  c.  Bower,  2  Dowl.  &  R.  761,  842 ;  S.  C.  1  Barn. 
&  Cress.  *87  ;  Vintners  Company  v.  Passey,  1  Burr.  239 ;  Willc.  230 ;  Glover, 
181 ;  Grant,  221.  If  of  a  public  and  magisterial  nature,  the  penalty  for  re- 
fusal may  be  imposed,  though  the  person  be  also  liable  to  be  punished  by 
indictment,  or,  in  the  discretion  of  the  court,  by  criminal  information : 
London  v.  Vanacker,  1  Ld.  Raym.  499 ;  Rex  v.  Grosvenor,  1  Wils.  18 ;  S.  C. 
2  Str.  1193  ;  Rex  v.  Hungerford,  11  Mod.  132,  142  ;  Rex  v.  Woodrow,  2  Term 
R.  732 ;  Rex  v.  Whitwell,  5  Term  R.  86 ;  Rex  ■».  Leyland,  3  M.  &  S.  184. 
The  Municipal  Corporations  Act  (5  and  6  Will.  IV.  Chap.  LXXVL,  Sec. 
51)  requires  every  qualified  person  elected  to  the  office  of  alderman,  coun- 
cillor, auditor,  or  assessor,  or  mayor,  to  accept  the  office  or  pay  a  fine  to 
the  borough  fund.  The  refusal  to  take  the  requisite  oaths  is  a  refusal  of 
the  office :  Exon  v.  Starre,  2  Show.  159.  As  there  is  a  common  law  duty  to  serve 
in  an  office  to  which  a  person  has  been  duly  elected,  this  duty  may,  if  the 
office  be  sufficiently  important,  be  enforced  by  mandamus,  and  the  payment 
of  the  fine  is  not  in  lieu  of  service  unless  the  statute  or  by-law  release  him 
from  service  by  treating  the  penalty  as  compensation :  Rex  v.  Bower,  1 


CH.  IX.]  RESIGNATION    OF   MUNICIPAL    OFFICES.  199 

clearly  set  forth  by  Lord  Holt  in  Vanacker's  Case,  and  al- 
though all  of  his  reasoning  is  not  applicable  to  onr  American 
municipal  corporations,  still  it  is  believed  that  under  the  iisual 
general  welfare  clause,  or  under  their  incidental  power  to  pass 
reasonable  and  necessary  by-laws,  they  would  be  authorized, 
where  such  an  ordinance  did  not  contravene  the  charter  or 
statute,  or  public  legislative  policy  respecting  offices,  to  im- 
pose a  reasonable  fine  for  refusing  corporate  offices.  In  this 
country,  however,  offices  have  not  usually  been  regarded  as 
burdens  to  be  avoided,  but,  rather,  as  distinctions  to  be  covet- 
ed, and  .hence  there  has  been  little  occasion  to  call  into  exer- 
cise the  power  of  the  courts,  or  to  test  the  authority  of  the 
corporations,  to  enforce  the  undertaking  of  their  offices.  If, 
under  the  charter  or  statute,  an  officer  has  the  right  to  resign 
or  lay  down  his  office  at  pleasure,  the  authority  to  impose  a 
fine  for  refusing  to  serve  would  probably  not  exist.1 

Resignation  of  Municipal  Offices. 

§  163.  An  office  may  be  resigned  either  (first)  expressly,  or 
(second)  by  implication.2  If  the  charter  prescribes  the  mode 
in  which  the  resignation  is  to  be  made,  that  mode  should,  of 
course,  be  complied  with.3  Acceptance  by  the  corporation  is, 
at  common  law,  necessary  to  a  consummation  of  the  resigna- 
tion, and  until  acceptance  by  proper  authority,  the  tender  or 
offer  to  resign  is  revocable.4    The  right  to  accept  a  resignation 

Barn.  &  Cress.  585 ;  S.  C.  2  Dowl.  &  R.  842 ;  Eex  v.  Leyland,  S  Maule  &  Sel. 
186 ;  Rex  v.  Woodrow,  2  Term  R.  731.  By  the  above  mentioned  provision 
of  the  Municipal  Corporations  Act,  the  fine  is  in  lieu  of  the  acceptance  of 
the  office :  Grant  on  Corp.  222. 

1  See  Willc.  133,  pi.  308 ;  Grant,  221,  222 ;  Gates  v.  Delaware  County,  12 
Iowa,  405 ;  United  States  v.  Wright,  1  McLean,  509 ;  State,  &c.  v.  Ferguson, 
31  N.  J.  (2  Vroom)  107. 

2  Regents  of  University  v.  Williams,  9  Gill.  &  J.  (Md.)  365,  422,  1838 ; 
Willc.  132, 238 ;  Grant,  268, 246,  note  e;  ib.  221,  222. 

s  Willc.  239 ;  Rex  v.  Hughes,  5  Barn.  &  Cress.  886,  896 ;  Rex  v.  Mayor  of 
Ripon,  1  Ld.  Raym.  563 ;  Rex  v.  Payne,  2  Chitty,  366 ;  Reg.  v.  Morton,  4 
Q.  B.  146. 

*  Rex  v.  Lane,  2  Ld.  Raym.  1304;  Rex  v.  Ripon,  supra;  Hazard's  Case,  2 
Rol.  11 ;  Jenning's  Case,  12  Mod.  402 ;  Rex  v.  Patteson,  4  B.  &  Ad.  9 ;  1  Nev. 
&  Mann.  612.  The  acceptance  may  be  by  entry  in  books,  by  vote,  or  reso- 
lution, or  by  treating  the  place  as  vacant  and  electing  another  to  fill  it,  or 


200  MUNICIPAL    CORPORATIONS.  [CH.  IX. 

is  a  power  incidental  to  every  corporation.1  It  is  also  a  com- 
mon law  principle  that  the  right  to  accept  the  resignation  of  an 
officer  is  incidental  to  the  power  of  appointing  him.2  If  no 
particular  mode  is  prescribed,  neither  the  resignation  nor  accept- 
ance thereof  need  be  in  writing,  or  in  any  form  of  words.3 

§  164.  An  office  may  be  impliedly  resigned  or  vacated  by  the 
incumbent  being  elected  to  and  accepting  an  incompatible  office. 
The  rule,  says  Parke,  J.,  in  a  leading  English  case  on  this  sub- 
ject, that  where  two  offices  are  incompatible  they  cannot  be 
held  together,  is  founded  on  the  plainest  principles  of  public 
policy,  and  has  obtained  from  very  early  times.4  The  princi- 
ple applies  not  only  where  the  second  office  is  the  superior  and 
more  important  one,  but  also  where  it  is  not.5  The  rule  has 
been  generally  stated  in  broad  and  unqualified  terms,  that  the 
acceptance  of  the  incompatible  office  by  whomsoever  the  ap- 
pointment or  election  might  be  made,  absolutely  determined 

ordering  an  election  if  to  be  filled  by  a  popular  vote  :  Van  Orsdall  v.  Haz- 
ard, 3  Hill  (N.  Y.),  243 ;  State  v.  Ancker,  2  Rich.  (South  Car.)  245.  One 
elected  to  an  office  cannot  resign  it  before  he  has  qualified  and  become  an 
incumbent  of  it:  Miller  v.  Supervisors,  &c.  25  Cal.  93;  Willc.  236. 

1  Rex  v.  Tidderley,  1  Sid.  14 ;  Hazard's  Case,  supra.  The  "  common  coun- 
cil" may  regulate  resignations  by  by-laws,  and  it  may  accept  resignations, 
as  it  represents  the  corporation  at  large:  Rawlinson  (5th  ed.).,  317,  note 
Staniland  v.  Hopkins,  9  M.  &  W.  178 ;  Willc.  240,  pi.  615. 

*  Van  Orsdall  v.  Hazard.  3  Hill  (N.  Y.),  243 ;  asserting,  arguendo,  the  in- 
cidental power  of  municipal  corporations,  as  such,  to  accept  resignations, 
and  approving  the  opinion  of  Mr.  Willcock  (Munic.  Corp.  240),  who  ob- 
serves, respecting  the  cases  on  this  subject :  "I  presume  that  a  right  to  ac- 
cept a  resignation  passes  incidentally  with  a  right  to  elect."  See,  also, 
Rex  «.  Tidderley,  1  Sid.  14,  per  Hale,  Ch.  B. ;  Jenning's  Case,  12  Mod.  402 ; 
Taylor's  Case,  Poph.  133. 

3  Same  authorities ;  and  see,  also,  Rex  v.  Ripon,  1  Ld.  Raym.  563 ;  S.  C.  2 
Salk.  433 ;  Regina  v.  Lane,  1  Ld.  Raym.  1304 ;  Jenning's  Case,  12  Mod.  402 ; 
Regina  v.  Gloucester,  Holt  R.  450 ;  Van  Orsdall  v.  Hazard,  3  Hill  (N.  Y.), 
243,  248;  State  v.  Allen,  21  Ind.  516, 1863 ;  People  v.  Police  Board,  26  N.  Y. 
316 ;  McCunn's  Case,  19  ib.  188,  distinguished. 

4  Per  Parke,  J.,  Rex  e.  Patteson,  4  Barn.  &  Adol.  9,  1832 ;  1  Nev.  &  Mann. 
612 ;  Regents  of  the  University  v.  Williams,  9  Gill  &  Johns.  (Md.)  365, 1838 ; 
1  Kyd,  369-375. 

5  Milward  v.  Thatcher,  2  Term  R.  87,  which  settled  this  point  conclu- 
sively; Rex  «.  Trelawney,  3  Burr.  1615;  Gabriel  v.  Clarke,  Cro.  Car.  138 ;  Rex 
v.  Godwin,  Doug.  383,  note  22 ;  Willc.  240,  pi.  617 ;  Glover,  139. 


OH.  IX.]  RESIGNATION    OF   MUNICIPAL    OFFICES.  201 

the  original  office,  leaving  no  shadow  of  title  in  the  possessor, 
whose  successor  may  be  at  once  elected  or  appointed,  neither 
quo  warranto  nor  amotion  being  necessary.1 

§  165.  The  doctrine  just  stated  is  undoubtedly  true  where 
the  acceptance  of  the  second  office  is  made  by  or  with  the 
privity  of  that  authority  which  has  the  power  to  accept  the 
surrender  of  the  first  or  to  amove  from  it;  but  "such  accept- 
ance does  not  operate  as  an  absolute  avoidance  in  cases  where 
a  person  cannot  divest  himself  of  an  office  by  his  own  mere 
act,  but  requires  the  concurrence  of  another  authority  to  his 
resignation  or  amotion,  unless  that  authority  is  privy  and  con- 
senting to  the  second  appointment."2  If  one  holding  an  office 
in  a  corporation  be  by  that  corporation  elected  to  an  incom- 
patible office,  this,  of  course,  is  a  consent  on  the  part  of  the 
corporation  that  the  first  office  be  vacated,  and  if  the  second 
office  be  accepted,  the  first  is  at  once  and  ipso  facto  determined. 
But,  until  acceptance,  the  former  office  is  not  vacated.3 

§  166.  The  rule  under  consideration  is  not  limited  to  cor- 
porate offices,  but  extends,  both  in  its  principle  and  applica- 
tion, to  all  public  offices.  Thu-;  if  a  Judge  of  the  Common  Pleas 
accepts  an  appointment  to  the  King's  Bench,  the  first  office  is 
vacated,  since  it  is  the  duty  of  the  one  to  correct  the  errors  of 
the  other.4 

1  Gabriel  v.  Clarke,  supra;  Verrior  v.  Sandwich,  1  Sid.  305;  Mil  ward  v. 
Thatcher,  supra;  Glover,  329;  Willc.  240,  pi.  617. 

2  Parke,  J.,  Rex  v.  Patteson,  supra.  It  has  been  held  in  this  country, 
however,  that  an  incumbent  of  a  public  office  may  lay  it  down  at  his  pleas- 
ure, and  that  the  officer  to  whom  the  resignation,  by  law,  is  to  be  made 
cannot  forbid  it  or  refuse  it;  and  that  when  received  by  such  officer  it 
operates  to  vacate  the  office  resigned:  Gates  v.  Delaware  County,  12  Iowa, 
405 ;  United  States  *.  Wright,  1  McLean,  509.  See,  however,  State,  &c.  v. 
Ferguson,  31  N.  J.  (2  Vroom)  Law,  107 ;  Lewis  ».  Oliver,  4  Abb.  Pr.  R.  121 ; 
People  v.  Porter,  6  Cal.  26. 

8  lb.  Milward  v.  Thatcher,,  supra;  Rex  v.  Pateman,  supra :  Willc.  243,  pi. 
623 ;  Arkwright  v.  Cantrell,  7  Ad.  &  E.  565.  Acceptance  necessary :  see, 
also,  State  v.  Ferguson,  31  N.  J.  (2  Vroom)  Law,  107,  1864 ;  see  Lewis  v. 
Oliver,  4  Abb.  Pr.  121.  Acceptance  of  an  incompatible  office,  even  under  a 
void  election,  puts  an  end  to  the  first  office,  and  the  officer,  on  being  ousted 
from  the  second  office,  cannot  be  restored  to  the  first :  Rex  v.  Hughes,  5  B. 
&  C.  386 ;  Rex  ».  Bond,  6  D.  &  R.  333. 

•  Glover  on  Corp.  139. 


202  MUNICIPAL    CORPORATIONS.  [CH.  IXj 

Whether  offices  are  incompatible  depends  upon  the  charter 
or  statute,  and  the  nature  of  the  duties  to  be  performed.1  The 
same  man  cannot  be  judge  and  minister  in  the  same  court,  and 
hence  the  offices  are  not  compatible.2  "Where  the  recorder  is 
an  adviser  to  the  mayor,  the  two  offices  cannot  be  held  to- 
gether.3 

§  167.  An  office  may  be  vacated  by  abandonment*  A  volun- 
tary enlistment  by  a  civil  officer  in  the  military  service  of  the 
United  States  for  three  years,  or  during  the  war,  vacates  the 
civil  office,  being  a  constructive  resignation  by  abandonment.5 
So  where  residence  within  the  corporation  is  necessary  in 
order  to  be  eligible  to  hold  an  office,  permanent  removal  from 
the  municipality  may  undoubtedly  be  taken  as  evincing  an 
intention  to  resign,  and  as  an  implied  resignation.6 

Compensation  of  Municipal  Officers. 

§  168.  We  have  had  occasion  to  discuss  the  complete  su- 
premacy of  thz  legislature  over  public  corporations,  limited  only 

1  Milward  o.  Thatcher,  supra,  per  Butter,  J. ;  People  v.  Carrigue,  2  Hill  (N. 
Y.),  93,  and  cases  cited ;  Staniland  v.  Hopkins,  9  M.  &  W.  178. 

Incompatibility  in  offices  exists  where  the  nature  and  duties  of  the  two 
offices  are  such  as  to  render  it  improper,  from  considerations  of  public  pol- 
icy, for  one  incumbent  to  retain  both.  It  does  not  necessarily  arise  when 
the  incumbent  places  himself,  for  the  time  being,  in  a  position  where  it  is 
impossible  for  him  to  discharge  the  duties  of  both  offices :  Bryan  v.  Cattell, 
15  Iowa,  538,  1864,' per  Wright,  C.  J.;  and  accordingly  that  case  held  that  the 
office  of  district  attorney  and  of  captain  in  the  volunteer  service  of  the 
United  States  were  not  legally  incompatible.  Two  offices  are  incompatible 
where  the  holder  cannot,  in  every  instance,  discharge  the  duties  of  each : 
Per  Bailey,  J.,  Rex  v.  Tizzard,  17  Eng.  C.  L.  193. 

2  Poph.  28,  29 ;  1  Sid.  305  ;  2  Keb.  92;  Glover,  139. 

"  Willc.  241.  pi.  618;  Rex  v.  Marshall,  cited,  2  B.  &  A.  341.  Clerk  of  a 
school  district  and  collector  of  the  district  were  held  not  incompatible,  and 
the  same  person  may,  therefore,  be  appointed  to  both  offices,  there  being 
no  prohibition  in  the  act:  Howland  v.  Luce,  16  Johns.  135,  1819.  The 
offices  of  councilman  and  city  marshal  are  incompatible  :  State  v.  Hoyt,  2 
Oregon,  246.  See,  generally,  as  to  incompatible  state  and  federal  offices: 
Respublica  v.  Dallas,  3  Yeates  (Pa.),  316;  S.  C.  4  Dall.  229 ;  Commonwealth 
v.  Binns,  17  Serg.  &  Bawle,  219;  Commonwealth  v.  Ford,  5  Barr  (Pa.),  67. 

♦  Willc.  238 ;  State  v.  Allen,  21  Ind.  516, 1863. 

5  State  v.  Allen,  21  Ind.  516, 1863.    But  see  Bryan  v.  Cattell,.  15  Iowa,  537. 

s  Willc.  238. 


CH.  IX.J  COMPENSATION   OF   MUNICIPAL    OFFICERS.  203 

by  express  constitutional  restraints.1  Its  authority  over  public 
offices,  which  are  created  or  authorized  solely  for  the  public 
convenience,  is  equally  great,2  and  may  be  conferred  upon  mu- 
nicipal corporations  with  respect  to  municipal  offices.  The 
legislature,  in  the  absence  of  constitutional :  limitation,  may 
create  and  abolish  offices,  add  to,  or  lessen,  their  duties, 
abridge  or  extend  the  term  of  office,  and  increase,  diminish, 
or  regulate,  the  compensation  of  officers  at  its  pleasure.3 

§  169.  There  is  no  such  implied  obligation  on  the  part  of 
municipal  corporations,  and  no  such  relation  between  them  and 
officers  which  they  are  required  by  law  to  elect,  as  will  oblige 
them  to  make  compensation  to  such  officers,  unless  the  tight  to  it 
is  expressly  given  by  law,  by  ordinance,  or  by  contract:4  Offi- 
cers of  a  municipal  corporation  are  deemed  to  have  accepted 
their  office  with  knowledge  of,  and  with  reference  to,  the  pro- 
visions of  the  charter  or  incorporating  statute  relating  to  the 
services  which  they  may  be  called  upon  to  render,  and  the 
compensation  provided  therefor.  Aside  from  these,  or  some 
proper  by-law,  there  is  no  implied  assumpsit  on  the  part  of  the 

1  Ante,  Chap.  IV. 

2  Ante,  Chap.  IV.  As  to  special  constitutional  restrictions,  ante,  p.  76, 
Sec,  33 ;  p.  78,  Sec.  34. 

8  Ante,  Chap.  IV.  and  see,  also,  Conner  i».  Mayor,  &c.  of  New  York,  1 
Seld.  (N,  Y.)  285,  1851 ;  affirming  S.  C.  2  Sandf.  S.  C.  R.  355 ;  Warner  v. 
People,  7  Hill,  81 ;  2  Denio,  272 ;  People  v.  Morrell,  21  Wend.  563, 1839 ; 
Phillips  v.  Mayor,  &c.  of  New  York,  1  Hilt.  (Com.  PI.)  483 ;  Bryan  v.  Cattell, 
15  Iowa,  538,  553,  per  Wright,  C.  J. ;  Coffin  v.  State,  7  Ind.  157, 1855 ;  People 
v.  Mahaney,  13  Mich.  481 ;  Turpen  v.  County  Commrs.  7  Ind.  172 ;  Oregon 
v.  Pyle,  1  Oregon,  149 ;  Cowdin  v.  Huff,  10  Ind.  83  ;  Cooley,  Const.  Lim.  276 ; 
Butler  v.  Pennsylvania,  10  How.  402 ;  Smith  v.  New  York,  37  N.  Y.  518, 
1868 ;  Swann  v.  Buck,  40  Miss.  268,  1866.  While  the  office  is  continued, 
and  the  officer  not  removed,  he  is  entitled  to  salary :  Hoke  v.  Henderson, 
4  Dev.  (N.  C.)  1 ;  Cotten  v.  Ellis,  8  Jones  (N.  C),  Law,  545. 

4  Sikes  v.  Hatfield,  13  Gray,  347, 1859  ;  Barton  v.  New'  Orleans,  16  La.  An. 
317 ;  Gamier  v.  St.  Louis,  37  Mo.  554,  1866.  It  is.  advisable  that  salaries 
should  be  fixed  by  ordinance,  and  not  voted  as  a  matter  of  grace  arid  favor : 
Smith  v.  Commonwealth,  41  Pa.  St.  335:  Devoy  v.,  New  York,  39  Barb.  169 ; 
Bladen  v.  Philadelphia,  60  Pa.  St.  464.,  See  opinion  of  Thompson,  C.  J., 
Philadelphia  ».  Given,  ib.  136.  Municipal  corporations  are  not  liable  for 
services  performed  by  an  officer  under  an  unconstitutional  statute :  Mea- 
gher p.  County,  5  Nev,  244, 1869.  n  , 


204  MUNICIPAL   CORPORATIONS.  [CH.  IX. 

corporation  with  respect  to  the  services  of  its  officers.  In  the 
absence  of  express  contract,  these  regulate  the  right  of  recov- 
ery, and  the  amount.  If  the  charter  or  by-laws  provide  for  a 
peculiar  mode  of  compensation,  as,  for  example,  to  a  city  sur- 
veyor, for  superintending  grading  of  streets,  by  an  assessment 
upon  the  property  owners,  the  city  is  not  liable  before  it  col- 
lects the  money,  if  it  makes  the  requisite  assessments,  and  is 
proceeding  with  proper  diligence  to  enforce  them.1 

§  170.  A  municipal  corporation  may,  unless  restrained  by 
charter,  or  unless  the  employment  is  in  the  nature  of  a  con- 
tract, reduce  or  otherwise  regulate  the  salaries  and  fees  of  its  officers, 
according  to  its  view  of  expediency  and  right.  Although  an 
officer  may  be  elected  or  appointed  for  a  fixed  period,  yet 
where  he  is  not  bound,  and  cannot  be  compelled  to  serve  for 
the  whole  time,  such  election  or  appointment  cannot  be  con- 
sidered a  contract  to  hire  for  a  stipulated  term.  Ordinances 
fixing  salaries  are  not  in  the  nature  of  contracts  with  officers.8 

1  Baker  v.  City  of  Utica,  19  N.  Y.  326 ;  People  v.  Supervisors,  1  Hill,  362 ; 
dimming  v.  Mayor,  &c.  of  Brooklyn,  11  Paige,  596 ;  Jersey  City  v.  Quaife,  2 
Dutch  (N.  Y.),  63 ;  Andrews  ».  United  States,  2  Story,  C.  C.  202 ;  United 
States  v.  Brown,  9  How.  487 ;  Barton  v.  New  Orleans,  16  La.  An.  395 ;  Mc- 
Clung  v.  St.  Paul,  14  Minn.  420,  1869 ;  Smith  v.  Commonwealth,  41  Pa.  St. 
335.  "  It  is  very  plain  to  us  that  a  town  officer,  as  such,  has  no  legal  claim 
against  the  town  to  recover  pay  for  services  rendered,  unless  by  an  express 
vote  of  the  town,  or  an  uniform  usage  to  pay  that  particular  officer  from 
year  to  year,  for  his  services.  And  in  the  latter  case,  it  would  be  very  ques- 
tionable whether  a  recovery  at  law  could  be  had,  if  it  had  all  along  been  left 
to  the  town  to  make  such  compensation  as  they  should  deem  reasonable, 
after  the  services  had  been  rendered.  *  *  *  The  same  princi- 
ple has  always  been  recognized  in  this  state  in  regard  to  all  officers.  If  no 
law  of  the  state  fixed  their  fees  or  pay,  their  services  must  be  gratuitous." 
Per  Redfield,  J.,  Boyden  v.  Brookline,  8  Vt.  284, 1836.  But  the  decision  (in 
Boyden  v.  Brookline,  8  Vt.  284,)  does  not  extend  strictly  beyond  official  ser- 
vices, and  when  a  town  agent,  acting  for  the  town,  or  the  town  itself,  em- 
ploys an  attorney  at  law  to  prosecute  or  defend  suits  against  the  town,  the 
latter  is  liable  for  the  services.  And  the  rule  is  the  same  if  the  "  town 
agent,"  being  an  attorney,  renders  for  the  town  professional  services,  in 
suits  which  the  proper  authorities  of  the  town  directed  to  be  instituted: 
Langdon  v.  Castleton,  30  Vt.  285,  1858. 

2  Commonwealth  i>.  Bacon,  6  Serg.  &  Bawle  (Pa.),  322,  1820;  followed, 
Barker  v.  Pittsburg,  4  Pa.  St.  49,  1846  (abolishing  annual  salary  of  collector 
of  tolls) ;  also,  approved:  University  v.  Walden,  15  Ala.  655,  1849,  but  dis- 
tinguished ;  Carr  a.  St.  Louis,  9  Mo.  190 ;  Comw.  v.  Ma,nn,  5W.4S.  (Pa.)  418; 


CH.  IX.J  COMPENSATION   OF   MUNICIPAL   OFFICERS.  205 

§  171.  But  where  the  services  to  be  performed  are  profes- 
sional or  private,  rather  than  public  or  official,  an  employment 
under  an  ordinance  for  a  fixed  time,  at  a  fixed  sum  for  the 
period,  has  been  held  to  be  a  contract,  and  not  subject  to  be 
impaired  by  the  corporation.  Thus,  the  appointment  or  elec- 
tion by  a  city  council,  for  a  fixed  and  definite  period,  of  a  city 
officer — for  example,  a  city  engineer,  for  one  year,  at  the  rate 
of  one  thousand  dollais  per  year — if  accepted  by  him,  consti- 
tutes, in  the  opinion  of  the  Supreme  Court  of  Massachusetts, 
a  contract  between  him  and  the  city,  and  the  city,  in  such  a 
case,  has  no  authority,  unless  expressly  conferred,  to  abolish 
or  shorten  the  term  of  office,  so  as  to  deprive  the  officer,  with- 
out his  consent,  of  the  right  to  compensation  for  the  full  period, 
unless  for  misbehavior  or  unfitness  to  discharge  the  duties  of 
the  place.1 

Smith  v.  County,  2  Par.  (Pa.)  293 ;  Madison  v.  Kelso,  32  Ind.  79 ;  Warner  v. 
People,  2  Denio,  272  ;  Conner  v.  Mayor,  &c.  of  New  York,  1  Seld.  285,  296. 
In  an  action  against  a  city  treasurer,  on  his  official  bond,  for  moneys  re- 
ceived by  him,  he  cannot  charge  commissions  for  the  whole  term  at  the 
rate  allowed  by  law  at  his  accession  to  office,  when  his  compensation  has 
been  changed  to  a  lower  rate  subsequently :  Iowa  City  v.  Foster,  10  Iowa, 
189 ;  supra,  Sec.  151.  In  Commonwealth  v.  Bacon,  supra,  it  was  held  that  an 
ordinance  which  reduced  the  salary  of  the  mayor  after  the  commencement 
of  his  term,  was  valid.  The  court  said,  "  this  cannot  be  considered  in  the 
nature  of  a  hiring  for  a  year,  because  it  was  not  obligatory  on  the  mayor  to 
serve  out  the  year."  Though  ordinance  may  fix  term  and  compensation  of 
officer,  the  office  may  be  abolished,  if  its  abolition  be  not  forbidden,  or  sal- 
ary reduced.  There  is  no  contract  between  corporation  and  officer  that  the 
service  shall  continue,  or  the  salary  not  be  changed:  Waldraven  v.  Mem- 
phis, 4  Coldw.  (Tenn.)  431,  1867 ;  Hoboken  v.  Gear,  3  Dutch.  (N.  J.)  265, 
1859.  General  power  to  a  corporation  to  fix  the  compensation  of  its  officers 
does  not  authorize  it  to  take  away  the  fees  of  an  officer,  which  are  specific- 
ally fixed  by  the  same  charter :  Carr  v.  St.  Louis,  9  Mo.  190,  1845.  The 
.  legislature  may  provide  that  the  salary  of  an  officer  may  be  fixed  by  one 
board, «.  g.  a  common  council,  though  it  is  payable  by  another,  e.  g.  a  county, 
or  board  of  supervisors,  and  in  that  case,  the  latter  have  no  authority  to 
change  it  when  once  fixed :    People  v.  Auditors  of  Wayne,  13  Mich.  233. 

1  Chase  e.  Lowell,  7  Gray,  33,  1856 ;  and  see  Caverley  v.  Lowell,  1  Allen 
(Mass.),  289,  1861,  as  to  ordinance  constituting  a  contract  with  city  attorney. 
These  cases,  if  really  distinguishable  from  the  others,  should  not,  it  is 
believed,  be  extended,  but  the  principle  limited  to  instances  where  the 
services  are  not  essentially  official  in  their  nature,  and  where  the  officer  or 
other  party  is  bound  to  serve  for  the  fixed  and  definite  period. 

A  resolution  of  the  council  empowering  an  individual  to  collect  the  taxes 


206  MUNICIPAL    CORPORATIONS.  [CH.  IX. 

§  172.  It  is  a  well  settled  rule  that  a  person  accepting  a 
public  office,  with  a  fixed  salary,  is  bound  to  perform  the 
duties  of.the  office  for  the  salary.  He  cannot  legally  claim  addi- 
tional compensation  for  the  discharge-  of  these  duties,  even 
though  the  salary  maj7  be  a  very  inadequate  remuneration  for 
the  services.  Jfor  does  it  alter  the  case  that  by  subsequent 
statutes  or  ordinances  his  duties. are  increased  and  not  his  sal- 
ary. Whenever  he  considers  the  compensation  inadequate,  he 
is  at  liberty  to  resign.  The  rule  is  of  importance  to  the  pub- 
lic. To  allow  changes  and  additions  in  the  duties  of  an  office 
to  lay  the  foundation  for  extra  services,  would  soon  introduce 
intolerable  mischief.  The  rule,  too,  should  be  very  rigidly 
enforced.  The  statutes  of  the  legislature  and  the  ordinances 
of  our  municipal  corporations  seldom  prescribe  with  much 
detail  and  particularity  the  duties  annexed  to  public  offices ; 
and  it  requires  but  little  ingenuity  to  run  nice  distinctions 
between  what  duties  may,  and  what  may  not,  be  considered 
strictly  official;  and  if  these  distinctions  are  much  favored  by 
courts  of  justice,  it  may  lead  to  great  abuse.1 

due  the  city,  at  a  given  rate  per  cent  on  the  amount  collected  for  his  com- 
pensation,may  be  repealed  or  modified  at  any  time,  by  the  corporation,  on 
the  sole  condition  that  it  shall  be  liable  for  any  compensation  earned  under 
the  resolution  previous  to  its  repeal  or  modification  :  Hiestand  x>.  New 
Orleans,  14  La.  An.  330,  1859.  The  court  did  not  regard  the  resolution  as 
creating  a  contract,  or,  if  so,  it  was  one  of  mandate,  revocable  at  the  will  of 
the  principal :  lb. 

'  Per  Potts,  J.,  in  Court  of  Errors  and  Appeals,  Evans  v.  Trenton,  4  Zabr- 
(N.  J.)  766,  1853.  See,  also,  Andrews  v.  United  States,  2  Story,  C.  C.  202  ; 
Palmer  v.  The  Mayor,  &c.  of  New  York,  2  Sandford  (N.  Y.),  318;  Bussier  ». 
Pray,  7  Serg.  &  Eawle,  447  ;  Angell  &  Ames  on  Corp.  Sec.  317 ;  Gilmore  ». 
Lewis,  12  Ohio,  281. 

A  salaried  officer  of  a  public  corporation  has  no  claim  for  compensation 
extra  his  salary,  on  the  ground  that  the  duties  of  his  office  have  been  in- 
creased, or  new  duties  added  since  the  salary  was  fixed :  People  v.  Super- 
visors, 1  Hill  (N.  Y.),  362 ;  Wendell  v.  Brooklyn,  29  Barb.  204 ;  Palmer  ». 
Mayor,  &c.  of  New  York,  2  Sandf.  (N.  Y.)  318.  Special  instances,  where  a 
claim  for  compensation,  in  the  absence  of  express  provision,  has  been  sus- 
tained, where  the  law  has  required  a  public  officer  to  perform  a  duty, 
attended  with  trouble  and  expense,  clearly  outside  of  his  regular  official 
duties,,  see  People  v.  Supervisors,  12  Wend.  257  ;  Bright  v.  Supervisors,  18 
Johns.  242 ;  Mallory  v.  Supervisors,  2  Cowen,  531 ;  ib.  533.  This  subject  is 
discussed  in  White  v.  Polk  County,  17  Iowa,  413. 

Where  salary  is  fixed  by  ordinance,  it  cannot  be  changed  by  a  commit- 


CH.  IX.]       LIABILITY    OP   CORPORATION   TO    THE    OFFICER.  207 

§  173.  Not  only  has  an  officer,  under  such  circumstances, 
no  legal  claim  for  extra  compensation,  but  a  promise  to  pay 
him  an  extra  fee  or  sum,  beyond  that  fixed  by  law  is  not  Uncling, 
though  he  renders  services  and  exercises  a  degree  of  diligence 
greater  than  could  legally  have  been  required  of  him.1 

Liability  of  Corporation  to  the.  Officer. 

§  174.  Where  an  officer  of  a  municipal  corporation,  elected 
by  the  people  for  a  specified  term,  is  improperly  removed  by  the 
city  council,  he  may  sue  the  corporation  for  his  salary  and 
perquisites  for  the  time  intervening  his  removal  and  the  ex- 
piration of  his  term.2     It  is  a  defence  to  the  corporation  that  the 

tee,  or  individual  members  of  the  corporation ;  nor  will  their  promise  to 
pay  extra  compensation  for  the  duties  of  the  office  be  binding  on  the  cor- 
poration. But  for  services  performed  by  request,  not  part  of  the  duties  of 
his  office,  and  which  could  as  appropriately  have  been  performed  by  any 
other  person,  such  officer  may,  in  proper  cases,  recover  a  just  remunera- 
tion: Evans  v.  Trenton,  4  Zabr.  (N.  J.)  764,  1853.  For  services  required  by 
■ordinances,  the  city  attorney  is  entitled  to  the  compensation  fixed  by  ordi- 
nance, and  no  other;  and  the  mayor,  by  virtue  of  his  duty  to  see  that  the 
"  ordinances  are  duly  enforced,"  cannot  bind  the  corporation  to  pay  more 
than  the  fixed  salary  or  compensation,  and  this  duty  does  not  authorize 
that  officer  to  employ  assistant  or  independent  counsel  in  any  case,  at  the 
expense  of  the  corporation:  Carroll  v.  St.  Louis,  12  Mo.  444, 1849.  Further, 
as  to  liability  of  city  to  attorneys,  see  the  chapter  on  Contracts. 

1  Heslep  v.  Sacramento,  2  Cal.  580  ($10,000  voted  to  mayor  for  meritorious 

.  services,  held  void) ;  Hatch  v.  Mann,  15  Wend.  44,  reversing  S.  C.  9  ill.  262; 
approved  Palmer  v.  Mayor,  &c.  of  New  York,  2  Sandf.  218  ;  Bartho  ».  Salter; 
Latch,  54 ;  W.  Jones,  65  ;  S.  C.  Lane  v.  Sewell,  1  Chitty,  175 ;  ib.  295 ;  Mor- 
ris v.  Burdett,  1  Camp.  218 ;  3  ib.  374  ;  Callagan  v.  Hallett,  1  Caines  (N.  Y.)r 
104;  S.  C.  Col.  &  C.  Oas.  179;  Preston  v.  Bacon,  4  Conn.  471 ;  Shattmck  v. 
Woods,  1  Pick.  175  -,  Bussier  «.  Pray,  7  Serg.  &  Rawle,  447 ;  Carroll  v.  Tyler,. 
■2  Har.  &  Gill,  54 ;  Smith  v.  Smith,  1  Bailey,  70 ;  Debolt  o.  Cincinnati,  7 Ohio 
'St.  237 ;  Pilie  v.  New  Orleans,  19  La.  An.  273.  The  principle  operates  to 
deprive  a  public  officer,  or  an  officer  of  a  municipal  corporation,  of  a  claim 
for  a  reward  offered  for  a  service  which  is  embraced  in  his  official  or  legal 

.  duties :  Gilmore  v.  Lewis,  1?  Ohio,  281,  where  a  constable  who  arrested  a 
thief  was  held  not  entitled  to  a  reward  offered  by  the  defendant.  S.  P. 
Pool  v.  Boston,  5  Cash.  219.     See,  ante,  Chap.  VI.  p.  134. 

*  Stadler  v.  Detroit,  13  Mich,  346, 1865 ;  Shaw  v.  Mayor,  &e.  19  Geo.  468',. 
1856.  The  court,  in  considering  the  rule  of  damages  in  such  a  case,  hold! 
that  the  officer  cannot  recover  of  the  corporation  counsel  fees  for  defend- 
ing hjmself  against  the  charges  preferred  against  him,  but  may  recover 
such  "damages  as  necessarily  resulted  from  his  amotion  from  office,  viz: 


208  MUNICIPAL   CORPORATIONS.  [CH.  IX. 

officer  was  legally  removed;  but  if  he  was  illegally  removed,  it 
is  no  answer  to  the  action  that  the  corporation,  in  making  the 
removal,  acted  judicially,  and  therefore  is  not  liable  for  the 
error  it  committed.1 

his  salary  and  perquisites: "  19  Geo.  468,  supra.  But  the  corporation,  it  is  sup- 
posed, may  recoup  the  same  as  individuals  who  improperly  dismiss  servants 
employed  for  a  determinate  period :  2  Greenl.  Ev.  Sec.  261  a.  See  United 
States  v.  Addison,  6  Wall.  291 :  Hoke  v.  Henderson,  4  Dev.  1. 

1  Shaw  v.  Mayor,  &c.  19  Geo.  468,  1856 ;  Shaw  t>.  Mayor,  &c.  21  Geo.  280 ; 
see,  S.  C.  Mayor,  &c.  v.  Shaw's  Administrator,  25  Geo.  590.  In  the  case  last 
cited,  it  was  decided  that  if  the  removal  of  a  city  officer  be  for  a  specified 
cause,  not  warranting  the  removal,  and  the  officer  sue  the  corporation  for 
his  salary,  as  a  defence  to  such  action 'it  may  aver  and  prove  other  matters, 
good  in  law;  to  justify  such  removal.  In  thus  holding,  the  court  say :  "  If 
his  term  of  office  had  not  expired  when  this  suit  was  instituted,  and  he 
had  moved  for  a  mandamus  to  restore  him,  instead  of  bringing  an  action 
for  his  salary,  the  court  would  not  have  interfered,  if  good  cause  for  his 
removal  could  have  been  shown,  although  he  may  have  been  removed 
without  notice :  Eex  ».  Mayor,  &c.  2  Cowp.  523 ;  The  King  v.  The  Mayor, 
&c.  2  Term  R.  182"—  per  McDonald,  J.,  25  Geo.  590,  592.  See  Hoboken  v. 
Gear,  3  Dutch.  (N.  J.)  265.  An  incumbent  was  appointed  by  the  aldermen 
and  removed  by  the  mayor,  who  nominated  a  successor;  the  incumbent's 
salary  did  not  cease  until  his  successor  was  confirmed :  White  v.  Mayor,  &c. 
of  New  York,  4  E.  D.  Smith,  563,  1855. 

Declaring  an  office  and  the  prospective  fees  of  the  officer  not  to  be  prop- 
erty, and  that  the  right  to  fees  grows  out  of  services  performed,  it  was  decided 
by  the  Court  of  Appeals  that  a  municipal  officer  who  had  been  kept  out  of 
his  office  and  had  not  performed  its  duties,  could  not  maintain  an  action 
against  the  city  to  recover  the  amount  of  fees  accruing  from  the  office : 
Smith  v.  New  York,  37  N.  Y.  518,  1868;  Hadley  v.  Mayor,  33  N.  Y.  603,  607, 
per  Denio,  C.  J. ;  Wayne  Count}'  v.  Benoit,  20  Mich.  176,  Cooley,  J.,  dissent- 
ing. It  has,  however,  several  times  been  decided  in  California  that  the 
salary  annexed  to  a  public  office  is  incident  to  the  title  to  the  office,  and  not 
to  its  occupancy  and  exercise,  and  that  the  right  to  compensation  is  not 
affected  by  the  fact  that  an  usurper,  or  officer  de  facto,  has  discharged  the 
duties  of  the  office:  Dorsey  v.  Smith,  28  Cal.  21;  Stratton  v.  Oulton,  ib.  44; 
Carroll  v.  Siebenthaler,  37  ib.  193,  1869 ;  approved  Meagher  v.  County,  5 
Nev.  244,  1869.  See  Philadelphia  v.  Given,  60  Pa.  St.  136,  per  Thompson, 
C.J. 

The  legal  incumbent  of  a  municipal  office  rendering  service  is  entitled  to 
compensation  until  he  has  actual  notice  of  his  removal :  Jarvis  v.  Mayor, 
&c.  of  New  York,  2  N.  Y.  Leg.  Obs.  396.  As  to  notice :  Field  ».  Common- 
wealth, 32  Pa.  St.  478,  1859;  Ex  parte  Ramshay,  83  Eng.  C.  L.  174,  1852 ;  Ex 
parte  Hennen,  13  Pet.  230;  Queen  v.  Governors,  &c.  8  Ad.  &  El.  682 ;  Page  v. 
Hardin,  8  B.  Mon.  (Ky.)  648 ;  Bowerbank  e.  Morris,  Wall.  C.  C.  R.  118.  In 
The  City  v.  Given,  60  Pa.  St.  136,  the  plaintiff  acted  as  city  commissioner 
for  some  months,  when  it  was  decided  that  he  had  not  been  duly  elected, 


CH.  IX.]  LIABILITY   OF   MUNICIPAL   OFFICERS.  209 

Liability  of  the  Officer  to  the  Corporation  and  to  Others. 

§  175.  Public  officers,  elected  pursuant  to  statute  by  a  mu- 
nicipal corporation,  are  not  the  servants  or  agents  of  the  cor- 
poration in  such  a  sense  as  will  enable  the  corporation,  in  the 
absence  of  a  statute  giving  the  remedy,  to  recover  damages 
against  such  officers  for  negligence  in  the  discharge  of  their  offi-  ' 
cial  duty.  If  the  corporation  can  recover  at  all  in  such  an 
action,  it  can  only  be  for  want  of  fidelity  and  integrity,  not  for 
honest  mistakes.1  To  protect  the  public,  however,  officers  are 
usually  required  to  give  bonds,  in  which  case  they  are,  of 
course,  liable,  as  we  have  seen,  according  to  the  conditions 
thereof.  By  charter,  the  power  to  appoint  policemen  was  con- 
ferred on  a  board  of  police,  composed  of  the  mayor  and  re- 
corders, and  this  board  was  authorized  to  discharge  policemen, 
for  cause,  and  to  "  decide  on  all  police  matters  pertaining  to 
appointments,  dismissals,  Ike.  finally  and  without,  appeal."  In  an 
action  for  wages,  brought  against  the  city  by  a  policeman, 

and,  in  a  suit  brought  for  his  salary,  it  was  held  that  he  could  not  recover, 
because  he  had  not  qualified  by  giving  security.  In  an  action  by  the  right- 
ful officer  on  a  supersedeas  bond  given  in  a  quo  warranto  proceeding  by  an 
intruder,  the  measure  of  damages  is  the  full  amount  of  the  salary  (where 
the  office  has  a  fixed  salary)  received  by  the  intruder  pending  the  opera- 
tion of  the  supersedeas:  United  States  v.  Addison,  6  Wall.  291. 

Respecting  liability  of  an  intruder  to  the  officer  de  jure  for  salary  and  fees 
received,  and  when  an  action  will  lie  for  money  had  and  received :  Glas- 
cock v.  Lyons,  20  Ind.  1 ;  Douglas  v.  State,  31  Ind.  479 ;  Dorsey  v  Smythe, 
28  Cal.  21 ;  Stratton  t>.  Oulton,  ib.  44;  City  v.  Given,  60  Pa.  St.  136;  Allen  v.' 
McKean,  1  Sumn.  117 ;  State  v.  Sherwood,  42  Mo.  179 ;  Hunter  v.  Chandler, 
10  Am.  Law  Reg.  (N.  S.)  440,  and  note  ;  Boyter  v.  Dodsworth,  6  Term  R. 
681 ;  Sadler  v.  Evans,  4  Burr.  1984. 

'  Parish  in  Sherburne  v.  Fiske,  8  Cush.  264,  266,  1851,  opinion  by  Dewey, 
J. ;  cites  White  v.  Phillipson,  10  Met.  108  ;  Trafton  v.  Alfred,  3  Shepl.  258 ; 
Kendall  v.  Stokes,  3  How.  87 ;  Commonwealth  v.  Genther,  17  Serg.  &  Rawle, 
135 ;  Wilson  v.  Mayor,  &c.  of  New  York,  1  Denio,  595 ;  Hancock  v.  Hazard, 
12  Cush.  112;  Minor  v.  Bank,  1  Pet.  (U.  S.)  46,  69.  Where  a  surveyor  of 
highways  has,  by  law,  a  discretion  as  to  the  kind  of  repairs,  and  exercises,- 
his  best  judgment  and  acts  in  good  faith,  the  corporation  for  which  he.  acts, 
is  bound,  and  cannot  defeat  his  recovery  for  the  price  of  materials  furnished 
by  evidence  to  show  that  the  repairs  were  not,  in  fact,  necessary.  But  it 
would  be  otherwise  if  fraud  or  corruption  were  shown :  Palmer  v.  CarrolL, 
4  Fost.  (N.  H.)  314, 1851.  See,  also,  People  v.  Lewis,  7  Johns.  73;  Seaman 
v.  Patten,  2  Caines,  312. 

27 


210  MUNICIPAL   CORPORATIONS.  CH.  IX.] 

who  claimed  that  he  had  been  appointed  for  a  year  and  dis- 
missed at  the  end  of  a  month,  without  good  cause,  the  Supreme 
Court  decided  that  the  board  having  dismissed  the  plaintiff  for 
what  it  deemed  sufficient  cause,  its  decision  was  final,  and  the 
sufficiency  of  the  cause  of  dismissal  was  not  mquirable  into  in 
the  action.1 

§  176.  In  this  country  the  officers  of  municipal  corporations 
are,  in  many  respects,  public  officers,  being  charged  with  duties 
which  concern  both  the  corporation  and  the  public  at  large. 
The  duties  and  liabilities  of  such  officers  to  the  corporation  fall 
within  the  scope  of  this  treatise,  and  have  been  considered. 
But  their  individual  rights  and  their  liability  to  others,  upon 
contracts  and  for  torts,  are  not,  strictly  speaking,  embraced  in 
the  plan  of  the  work.  It  has,  however,  been  thought,  that  a 
brief  reference  to  some  of  the  more  important  rules  and  leading 
adjudications  on  this  subject  was  desirable,  and  this  has  accord- 
ingly been  done  in  the  note.2 

1  Nolan  v.  New  Orleans,  10  La.  An.  106, 1855. 

2  Suits. —  Public  officers  have,  in  general,  a  power  to  sue  commensurate 
with  their  duties.  If  officers  of  a  corporate  body,  suit  should  be  brought  in 
the  name  of  the  corporation,  unless  the  statute  direct  otherwise :  Shook  v. 
State,  6  Ind.  113 ;  State  v.  Rush,  7  ib.  221 ;  Supervisors  v.  Stimpson,  4  Hill, 
136,  and  cases  cited ;  Todd  v.  Birdsall,  1  Cow.  260,  and  cases  cited  in  note ; 
Jansen  v.  Ostrander,  1  Cow.  670 ;  Cornell  v.  Guilford,  1  Denio,  510 ;  compare 
Commissioners  v.  Perry,  5  Ohio,  57 ;  Barney  o.  Bush,  9  Ala.  345 ;  Van  Keu- 
ren  v.  Johnson,  3  Denio,  182.  But  it  has  been  held,  that  a  public  officer 
cannot,  without  the  aid  of  a  statute,  maintain  a  suit  in  his  own  name,  al- 
though he  may  have  taken  a  note  or  contract  to  himself  individually,  if  the 
consideration  for  such  note  or  contract  be  a  liability  to  the  state.  The 
ground  of  this  rule  is  public  policy  to  discourage  public  officers  from  trans- 
acting, in  their  own  name,  the  business  of  the  public :  Hunter  v.  Field,  20 
Ohio,  340, 1851 ;  Irish  v.  Webster,  5  Greenl.  (Me.)  171 ;  Gilmore  ».  Pope,  5 
Mass.  491.  If  the  obligation  is  taken  to  the  officer  as  agent,  or  in  his  offi- 
cial capacity,  the  action  is  properly  brought  in  the  name  of  the  government 
beneficially  interested :  Dugan  v.  United  States,  3  Wheat.  172 ;  S.  P.  United 
States  v.  Boice,  2  McLean,  352 ;  United  States  v.  Barker,  1  Paine,  C.  C.  152 ; 
2  Parsons  on  Notes  and  Bills,  451,  and  other  cases  cited.  An  action  by  a 
public  officer  does  not  abate  by  the  expiration  of  his  term  of  office.  The 
suit  may  be  continued  in  his  name  until  its  termination,  or,  by  the  practice 
in  many  of  the  States,  his  successor  may  be  substituted:  Kellar  v.  Savage, 
20  Maine,  199, 1841 ;  Todd  v.  Birdsall,  1  Cow.  260 ;  Haynes  v.  Covington,  13 
Sin.  &  Mar.  408 ;  Grant  v.  Paucher,  5  Cow.  369 ;  Colgrove  v.  Breed,  2  Denio, 
125 ;  Manchester  v.  Herrington,  10  N.  Y.  164;  Upton  v.  Starr,  3  Ind.  538. 


OH.  IX.]  AMOTION   AND   DISFRANCHISEMENT.  211 

Amotion  and  Disfranchisement. 

§  177.  The  elementary  works  treat  of  .Amotion  and  Dis- 
franchisement together ;    indeed,  formerly,  the  important  dis- 

Evidence. —  Where  the  authority  of  an  officer  of  a  public  corporation 
comes  incidentally  in  question  in  an  action  in  which  he  is  not  a  party,  it  is 
sufficient  to  show  that  he  was  an  acting  officer,  and  the  regularity  of  his 
appointment  or  election  cannot  be  made  a  question.  Proof  that  he  is  an 
acting  officer  is  prima  facie  evidence  of  his  election  or  appointment,  as  well 
as  of  his  having  duly  qualified.  But  if  he  relies  alone  on  proof  of  a  due 
election  or  appointment,  such  election  or  appointment  must  be  legally  es- 
tablished :  Pierce  v.  Richardson,  37  N.  H.  306,  1858 ;  Tucker  v.  Aiken,  7  N. 
H.  113 ;  Johnson  v.  Wilson,  2  N.  H.  202 ;  Baker  e.  Shephard,  4  Fost.  (N.  H.) 
212, 1851,  and  cases  cited;  Bean  o.  Thompson,  19  N.  H.  290;  .  Blake  il.  Stur- 
devant,  12  N.  H.  573;  Burgess  v.  Pue,  2  Gill  (Md.),  254.  An  officer,  even 
when  justifying,  may  prima  facie  establish  his  official  character  by  proof  of 
general  reputation,  and  that  he  acted  as  such  officer :  Johnson  v.  Steadman, 
3  Ohio,  94  ;  followed,  Eldred  v.  Seaton,  5  ib.  215 ;  Berryman  v.  Wise,  4  Term 
R.  366;  Potter  v.  Luther,  6  Johns.  431;  Wilcox  v.  Smith,  5  Wend.  233; 
People  v.  McKinney,  10  Mich.  54.  But  it  is  not  enough  to  show  that  the 
officer  was  acting  officially  in  the  particular  instance  in  controversy  in  the 
case  upon  trial,  and  in  which  his  authority  is  questioned :  Hall  v.  Manches- 
•  ter,  39  N.  H.  295, 1859.  An  acting  officer  is  estopped  to  dispute  the  validity 
of  his  own  appointment  and  election :  State  v.  Sellers,  7  Rich.  Law,  368 ; 
State  v.  Mayberry,  3  Strob.  144. 

Acts  and  Declarations  of  officers  when  evidence  for  or  against  the  cor- 
poration :  Mitchell  n.  Rockland,  41  Me.  363 ;  Jordan  ».  School  District,  38 
ib.  1864 ;  Morrell  v.  Dixfield,  30  ib.  157 ;  County  v.  Simmons,  5  Gilm.  (111.) 
516;  Railroad  Company  v.  Ingles,  15  B.  Mon.  637;  Glidden  v.  Unity,  33 
N.H.  577;  Toll  Co,  v.  Betsworth,  30' Conn.  380;  Barnes  v.  Pennell,  2  H. 
of  L.  Cas.  497.  See  chapter  on  Corporate  Records  and  Documents,  post. 
The  acts  of  the  officers  of  municipal  corporations  in  the  line  of  their  official 
duty,  and  within  the  scope  of  their  authority,  are  binding  upon  the  body 
they  represent,  and  declarations  and  admissions  accompanying  such  acts  as 
part  of  the  res  gestse,  calculated  to  explain  and  unfold  their  character,  and 
not  narrative  of  past  transactions,  are  competent  evidence  against  the  cor- 
poration. To  render  such  declarations  and  admissions  evidence,  they  must 
accompany  acts,  which  acts  must  be  of  a  nature  to  bind  the  corporate  body : 
Glidden  v.  Unity,  33  N.  H.  571, 1856. 

Notice. — Where  the  officers  or  agents  of  a  public  corporationjhave  no 
powers  or  duties  with  respect  to  a  given  matter,  their  individual  knowledge, 
or  the  individual  knowledge  of  the  inhabitants  or  voters,  do  not  bind  or 
affect  the  corporation:  Harrington  v.  Schbol  District,  30  Vt.  155, 1858;  An- 
gell  &  Ames,  Corp.  Sec.  239 ;  Hayden  v.  Turnpike  Co.  10  Mass.  397.  The 
mayor  is  chief  executive  officer  of  the  city,  and  notice  to  him  of  a  nuisance 
is  sufficient,  when  it  would  not  be  to  the  clerk,  who  is  only  a  recording  offi- 
cer, not  authorized  to  act  upon  the  notice :  Nichols  v.  Roston,  98  Mass.  39, 
1867 ;  ante,  Sees.  147, 148. 


212  MUNICIPAL   CORPORATIONS.  [CH.  IX. 

tinction  between  the  two  was  not  observed.     Amotion  relates 
alone  to  officers  ;  disfranchisement,  to  corporators  or  members  of 

Indictment  of  Public  and  Corporate  Officers. — "A  public  officer,"  it  is 
declared  in  North  Carolina,  "  intrusted  with  definite  powers  to  be  exercised 
for  the  benefit  of  the  community,  who  wickedly  abuses  or  fraudulently  ex- 
ceeds them,  is  punishable  by  indictment:"  State  v.  Glasgow,  North  Car. 
Conf.  E.  186,  187  (indictment  of  secretary  of  state) ;  State  v.  Justices,  &c. 
4  Hawks  (North  Car.),  194  (when  county  authorities  indictable  for  non- 
repair of  jail) ;  see  Paris  ».  People,  27  111.  74 ;  State  v.  Commissioners  of 
Fayetteville  (non-repair  of  streets) ,  2  North  Car.  Law,  617 ;  ib.  633 ;  2  Murph. 
371.  But  see  as  to  street  commissioner :  Graffurs  ».  Commonwealth,  3  Pa. 
(Penn.  &  W.)  502 ;  State  v.  Commissioners,  Walk.  (Miss.)  368.  Indictment 
of  municipal  officers  for  violation  of  charter :  People  v.  Wood,  4  Park.  Cr. 
E.  144;  Hammer  v.  Covington,  3  Met.  (Ky.)  494;  State  ».  Shelby ville,  4 
Sneed  (Tenn.),  176;  State  v.  Shields,  8  Blackf.  151;  Lathrop  ».  State,  6 
Blackf.  502 ;  State  v.  Burlington,  36  Vt.  521.  Requisites  of  indictment  for  non- 
performance of  official  duty ;  Waters  v.  People,  13  Mich.  446 ;  State  ». 
Mayor,  11  Humph.  217  ;  State  v.  Commissioners,  2  Dev.  345  ;  3  Chitty,  Crim. 
Law,  586,  606,  for  precedents  of  indictments  against  corporations.  Criminal 
information  against  municipal  officers :  Willc.  Corp.  315-318 ;  Bex  v.  Watson, 
2  Term  E.  204 ;  ib.  198.  Indictment  against  municipal  corporations :  See 
chapter  on  Eemedies  against  Illegal  Corporate  Acts,  post. 

Liability  fob  Moneys  Eeceived. —  A  public  or  municipal  officer,  who  is 
required  to  account  for  and  pay  over  money  that  comes  into  his  hands,  is 
liable,  though  it  be  stolen  without  his  fault,  unless  relieved  from  this  respon- 
sibility by  statute :  Halbert  v.  State,  22  Ind.  125,  1864 ;  Muzzy  «.  Shattuck, 
1  Denio,  233 ;  State  v.  Township,  28  Ind.  86 ;  Hancock  v.  Hayard,  12  Cush. 
112 ;  United  States  v.  Prescott,  3  How.  (U.  S.)  578  ;  Commonwealth  ».  Cone- 
ley,  3  Pa.  St.  372 :  State  v.  Harper,  .6  Ohio  St.  607.  And  a  direction  to  a 
public  officer  (e.  g.  a  county  treasurer)  how  and  where  to  keep  the  money 
(e.  g.  in  a  safe  provided  by  the  county),  if  made  by  a  board  or  authority 
having  no  legal  control  or  power  over  the  matter,  will  not  be  a  defence  to 
such  officer  if  the  money  is  stolen  from  the  safe :  Halbert  v.  State,  supra.  It 
is  no  defence  to  a  tax  collector  to  recover  moneys  received  by  him, — that 
he  received  the  money  on  account  of  taxes  which  the  legislature  had  no 
constitutional  power  to  impose:  Waters  v.  State,  1  Gill  (Md.),  302,1843; 
Thompson  v.  Stickney,  6  Ala.  579 ;  Evans  v.  Trenton,  4  Zabr.  764. 
.  Liability  on  Contracts. —  Public  and  municipal  officers  are  not  person- 
ally liable  on  contracts  within  the  scope  of  their  authority  and  line  of  duty, 
unless  it  is  very  apparent  that  they  intended  to  bind  themselves  personal- 
ly :  Macbeth  v.  Haldeman,  1  Term  E.  172,  and  Hodgden  1>.  Dexter,  1 
Cranch,  145,  are  the  leading  cases.  The  question  is,  to  whom  was  the 
credit  given? — did  the  defendant  contract  in  his  public  or  private  capaci- 
ty ?  See  Olney  v.  Wickes,  18  Johns.  122,  where  the  promise  was  held  not 
personal :  Compare  King  v.  Butler,  15  Johns.  281 ;  Gill  t>.  Brown,  12  Johns. 
385 ;  Walker  e.  Swartout,  ib.  444  ;  Mott  v.  Hicks,  1  Cow.  513  ;  Sheffield  v. 
Watson,  3  Caines,  69  ;  commented  on,  12  Johns.  448 ;  Brown  v.  Eundlett 
(full  discussion),  15  N.  H.  360, 1844,  and  cases  cited  and  criticized ;  Belknap 


CH.  IX.]  AMOTION   AND   DISFRANCHISEMENT.  213 

the  corporation.     Amotion,  therefore,  is  the  removal  of  an 
officer  in  a  corporation  from  his  office,  but  it  leaves  him  still ' 

e.  Eheinhart,  2  Wend.  375 ;  Adams  v.  Whittlessey,  3  Conn.  560 ;  8  ib.  329  ; 
Hammerskold  v.  Bull,  et  al.  ("state  capitol  commissioners")  11  Eich.  (South 
Car.)  Law,  493  ;  Lesley  v.  White,  1  Speers,  31 ;  Young  v.  Commisssioners  of 
Roads,  2  Nott  &  McC.  537  ;  Miller  t>.  Ford,  4  Rich.  (South  Car.)  Law,  376 ; 
•  S.  C.  4  Strob.  213 ;  Copes  v.  Mathews,  10  Sm.  &  Marsh.  398 ;  Tucker  v.  Short- 
er, 17  Geo.  620 ;  Hall  v.  Cockrell,  28  Ala.  507,  1856 ;  but  guxre,  as  to  its  cor- 
rectness. In  the  absence  of  a  provision  to  the  contrary,  an  officer  of  a  mu- 
nicipal corporation  is  not  disabled  from  entering  into  a  contract  with  it : 
Municipality  v.  Caldwin,  3  Rob.  (La.)  368, 1842.  It  is  held,  that  where  the 
officers  of  a  public  or  municipal  corporation,  acting  officially,  and  under  an 
innocent  mistake  of  the  law,  in  which  the  other  contracting  party  equally 
participated,  with  equal  opportunities  of  knowledge,  neither  party  at  the 
time  looking  to  personal  liability,  the  officers  are  not,  in  such  case,  personally 
liable,  nor  is  the  corporation  liable :  Houston  v.  Clay  County  (unauthorized 
contract  by  township  trustees  for  the  erection  of  a  bridge),  18  Ind.  396, 
1862 ;  Boardman  v.  Hayne,  29  Iowa,  339,  1870 ;  Duncan  t>.  Mies,  32  111.  532, 
1863,  and  cases  cited ;  Ogden  v.  Raymond,  22  Conn.  379,  1853 ;  Dameron  v. 
Irwin,  8  Ire.  Law,  421,  1848 ;  Hite  v.  Goodman,  1  Dev.  &  Bat.  Eq.  364,  1836  ; 
Ives  *.  Hulet,  12  Vt.  314,  1840 ;  Stone  v.  Huggins,  28  ib.  617  ;  Tucker  «.  Jus- 
tices, 13  Ire.  (Law),  434 ;  Dey  v.  Lee,  4  Jones  (Law),  238 ;  Tucker  v.  Shorter, 
17  Geo.  fi20  ;  Copes  *.  Mathews,  10  Sm.  &  Marsh.  398 ;  Hall  v.  Cockrell,  28 
Ala.  507 ;  compare  Potts  v.  Henderson,  2  Ind.  (Carter)  327,  1850.  Liability 
under  statute,  of  trustees  or  directors  of-  public  works  who  make  unauthorj 
ized  contracts :  Higgins  v.  Livingstone,  4  Dow.  341 ;  Parrott  v.  Eyre,  10 
Bing.  283 ;  Wilson  v.  Goodman,  4  Hare,  54. 

Tax  Collector's  Liability  to  Third  Persons. — Tax  collector  liable  in 
trespass  who  seizes  without  color  of  law  for  tax  assessment,  or  under  an  un* 
constitutional  law :  McCoy  v.  Chillicothe,  3  Ohio,  370 ;  Ragnet  v.  Wade,  4  i6. 
107 ;  Loomis  v.  Spencer,  1  Ohio  St.  150.  But  a  collector  whose  warrant  is  in  due 
form,  with  nothing  on  its  face  to  show  the  illegality  of  the  tax  or  the  want 
•of  authority  in  the  assessors  or  previous  officers,,  will  be  protected  in 
executing  it,  even  though  the  tax  be  not  lawfully  assessed :  Chegary  », 
Jenkins,  1  Seld.  (N.  Y.)  376,  1851 ;  affirming  S.  C.  3  Sandf.  Sup.  Ct.  R. 
409 ;  Abbott  v.  Yost,  2  Denio,  86 ;  Savacool  v.  Boughton,  5  Wend.  170,  1830, 
leading  case;  Downing  v.  Rugar,  21  Wend.  178,  warrant  of  justice  to  over* 
seers  of  poor;  Alexander  v.  Hoyt,  7  Wend.  89;  Clark  v.  Halleck,  16  Wend. 
607  ;  People  v,  Warren,  5  Hill,  440;  Webber  v.  Gray,  24  Wend.  440;  Loomis 
o.  Spencer,  1  Ohio  St  153 ;  Little  v.  Merritt,  10  Pick.  547 ;  see  Suydam  «. 
Keys,  13  Johns.  444 ;  Gale  v.  Mead,  2  Denio,  160 ;  ib.  232 ;  Easton  v.  Calen- 
der, 11  Wend.  90. 

Liability  of  Public  Office&s  for  Acts  of  Subordinates. — Public  officers 
are  not  liable  for  the  misconduct  or  malfeasance  of  such  persons  as  they 
are  obliged  to  employ,  the  reason  here  being,  that  the  maxim  of  respondeat 
superior  has  no  application,  there  being  no  freedom  of  choice  as  to  the  se- 
lection and  control  of  agents :  Bailey  v.  Mayor,  &c.  3  Hill  (N.  Y.),  531,  1842 ; 
affirmed  in  error,  2  Denio,  433, 1845 ;  Hall  v.  Smith,  2  Bing.  156 ;  Humphreys 


214  MUNICIPAL  CORPORATIONS.  [CH.  IX. 

a  member  of  the  corporation.  Disfranchisement  is  to  destroy 
or  take  away  the  franchise  or  right  of  being  any  longer  a  mem- 

v.  Mears,  1  Man.  &  Ryl.  187 ;  Bolton  v.  Crowther,  4  Dowl.  &  Ryl.  195 ;  Har- 
ris v.  Baker,  4  Maule  &  Selw.  27.  See,  also :  Lane  v.  Cotton,  1  Salk.  17 ;  Sto- 
ry on  Agency,  320,  et  seq. ;  Story  on  Bail,  300,  302;  Martin  v.  Mayor,  &c.  1 
Hill,  545,  551 ;  Mayor,  &c.  v.  Furze,  3  Hill  (N.  Y.),  612,  618. 

Liability  of  Public  Officers  foe  Acts  Judicial  in  their  Nature.— Offi- 
cers are  not  liable  for  honest  errors  or  mistakes  of  judgment  as  to  acts  with- 
in the  scope  of  their  authority,  judicial  in  their  nature,  in  the  absence  of 
malice,  or  corruption,  or  statute  imposing  the  liability :  Bamsey  v.  Riley,  13 
Ohio,  157 ;  Stewart  v.  Southard,  17  ib.  402 ;  Conwell  v.  Emrie  (road  super- 
visor), 4  Ind.  200;  Bartlett  v.  Crozier  (highway  overseer),  17  Johns.  439; 
Freeman  v.  Cornwall  (highway  overseer),  10  ib.  470 ;  Johnson  v.  Stanley,  1 
Boot  (Conn.),  245 ;  Township  ».  Carey,  3  Dutch.  377  ;  Waters  v.  Waterman, 
2  ib.  214 ;  Qraig  v.  Burnett,  32  Ala.  728  ;  State  v.  Dunnington,  12  Md.  340 ; 
Commissioners  b.  Nesbitt,  11  Gill  &  J.  50.  Liability  where  the  officer's 
function  is  quad  judicial :  Wilkes  v.  Dinsman,  7  How.  89,  where  the  subject 
is  much  considered,  and  malice  or  wilful  wrong  held  to  be  essential.  The 
members  of  a  city  council  are  not  individually  liable,  in  a  civil  or  criminal 
action,  for  acts  involving  the  exercise  of  discretion,  unless  they  act  corrupt- 
ly ;  Walker  v.  Hallock,  32  Ind.  239,  1869 ;  Baker  v.  State,  27  Ind.  485.  Pub- 
lic duty,  not  ordinarily  enforceable  by  private  action  against  the  officer,  unless 
given  by  statute ;  Foster  v.  McKibben,  14  Pa.  St.  168.  Misapplication  of  pub- 
lic funds  by  officer:  Township,  &c.  o.  Linn,  36  Pa.  St.  431.  Neglect  to  takea 
bond  required  by  law :  Boggs  v.  Hamilton,  2  Const.  (South  Car.)  R.  381 ; 
State  v.  Dunnington,  12  Md.  340. 

Liability  for  Torts. — Alvord  v.  Barrett  (town  clerk),  16  Wis.  175 ;  Amer- 
ican Print  Works  v.  Lawrence,  3  Zabr.  590,  601.  No  liability  for  acts  done 
by  a  public  officer  under  lawful  authority  and  in  a  proper  manner :  lb. 
Full  discussion  and  cases  cited  by  Carpenter,  J. .  S.  P.  in  S.  C.  1  Zabr.  248, 
260,  per  Oreen,  C.  J. ;  Calkins  v.  Baldwin,  4  Wend.  667,  and  cases  cited.  How 
far  protected  by  an  unconstitutional  statute :  Ib.  Liability  for  nonfeasance 
or  misfeasance,  where  the  duty  is  specific,  imperative,  and  not  judicial,  in  its 
nature :  Griffith  v.  Follett,  20  Barb.  620, 1855 ;  Weaver  v.  Devendorf,  3Denio, 
117 ;  Harmon  v.  Brotherson,  1  Denio,  537  ;  ib.  595 ;  Adsit  v.  Brady,  4  Hill 
(N.  Y.),  630,  1843.  The  principle  on  which  a  public  officer  is  held  person- 
ally liable  for  injuries  resulting  from  improper  execution  of  official  duties, 
is  well  stated  in  Nowell  v.  Wright,  3  Allen,  166.  In  Amy  v.  Supervisors,  1 
Wall.  136, 1870,  where  county  supervisors  were  held  to  be- personally  liable 
for  failing  to  levy  a  tax,  as  commanded  by  the  court,  to  pay  the  plaintiff's 
judgment,  Mr.  Justice  Swayne,  stating  the  principle  of  the  decision,  says : 
"  The  rule  is  well  settled,  that  where  the  law  requires,  absolutely,  a  minis- 
terial act  to  be  done  by  a  public  officer,  and  he  neglects  or  refuses  to  do 
such  act,  he  may  be  compelled  to  respond  in  dainages  to  the  extent  of  the 
injury  arising  from  his  conduct ;  mistake  of  duty  and  honest  intentions  will 
not  excuse  the  offender."  Liability  for  fraud :  Oakland  v.  Carpenter,  13 
Cal.  540.  A  ministerial  officer,  acting  in  good  faith,  is  liable  for  actual,  but 
not  for  exemplary,  damages,  for  illegal  acts  injurious  to  private  persons : 


[CH.  IX.  AMOTION   AND   DISFRANCHISEMENT.  215 

her  of  the  corporation.1  American  municipal  corporations  are, 
in  many  respects,  essentially  different  in  their  constitution 
from  the  old  English  municipal  corporations,  under  which 
most  of  the  cases  on  the  subject  of  Amotion  and  Disfranchise- 
ment, usually  cited  in  the  books,  arose.  These  cases  are  often 
inapplicable  here,  and  should,  it  is  believed,  be  followed  by 
our  courts  as  precedents  with  unusual  caution,  and  only  when 
they  rest  upon  or  declare  principles  general  in  their  nature, 
and  which  embrace  in  their  operation  municipal  institution's 
possessing  the  distinctive  characteristics  of  ours.  Here,  the 
inhabitants  of  the  municipality  are  the  corporators ;  certain  of 
those  inhabitants  (usually  all  of  the  adult  male  residents),  have 
the  right  to  elect  the  legislative  or  governing  body,  and  also, 
frequently,  the  other  more  important  officers  of  the  corpora- 
tion. It  would  seem  that  the  English  doctrine  of  disfranchise- 
ment of  a  corporator  or  member  has  no  application  to  our  mu- 
nicipal corporations,  whether  the  corporator  be  considered 
the  "inhabitant,"  or  the  "voter." 

§  178.     Whether  the  power  of  disfranchisement  be  incidental 
to  the  corporation,  or  must.be  expressly  conferred,  respecting 

Tracy  v.  Swartout,  10  Pet.  (TJ.  S.)  80,  1836  (action  against  collector  of  cus- 
toms) ;  ib.  137 ;  Jenner  v.  JolifFe,  9  Johns.  382.  A  provision  of  law  making 
a  civil  corporation  liable  "  for  the  illegal  doings  and  defaults  "  of  its  officers 
(there  being  no  provision  that  the  officers  shall  not  also  remain  liable)  does 
not  deprive  the  party  injured  of  his  right  to  proceed,  personally,  against  the 
officer  or  agent  who  committed  the  injury.  Both  are  liable :  Rounds  v. 
Mansfield,  38  Maine  (3  Heath),  586,  1854.  Election  officers  for  refusing  vote, 
when  liable:  Gordon  v.  Farrer,  2  Doug.  (Mich.)  411;  Carter  v.  Harrison  5 
Blackf.  138 ;  Jeffries  v.  Ankeny,  11  Ohio,  374 ;  compare  Ramsey  v.  Riley.  13 
Ohio,  157.  See  Jenkins  v.  Waldron,  11  Johns.  114 ;  Lincoln  v.  Hapgood,  11 
Mass.  350 ;  Bridge  v.  Lincoln,  14  ib.  367.  Collection  and  revenue  officers  not 
liable  to  the  party  paying  for  money  voluntarily  paid  to  them :  Elliott  v. 
Swartout,  10  Pet.  137, 1836  ;  Thompson  v.  Stickney,  6  Ala.  579.  When  liable 
in  trespass :  McCoy  v.  Chillicothe,  3  Ohio,  370 ;  Loomis  v.  Spencer,  1  Ohio 
St.  153.  Recording  officer :  Ramsey  v.  Riley,  13  Ohio,  157 ;  approved,  Stew- 
art v.  Southard,  17  ib.  402. 

1  2Kyd,  50-94;  Willc.  245-276;  Glover,  Chap.  XVI.  pp.  327-338 ;  Grant, 
250,  263.  And  see  2  Kent  Com.  278,  297,  where  amotion  and  disfranchise- 
ment are  used  as  convertible  terms.  Angell  &  Ames,  Corp.  Chap.  XII. 
where  the  cases  are  very  fully  collected,  and  the  doctrine  of  the  English 
decisions  satisfactorily  presented. 


216  ^MUNICIPAL   CORPORATIONS.  CH.  IX.] 

which  there  is  in  England  some  contrariety  of  view,1  we  need 
not  inquire,  for  here  (were  there  no  constitutional  obstacles) 
the  legislature  never  bestows  upon  the  council  or  governing 
body  which  represents  the  corporation  the  right  to  disfranchise 
the  citizen  or  corporator,  and  it  is  clear  that  such  a  formidable 
and  extraordinary  authority  does  not  exist,  and  cannot  be  ex- 
ercised by  the  council,  as  an  incidental  or  implied  right.  To 
burn/  or  destroy  the  charters  of  the  corporation,  or  wilfully  to 
falsify  its  books,  were,  in  England,  considered  such  breaches 
of  duty  on  the  part  of  a  corporator  as  would  work  a  forfeiture 
of  the  corporate  character,2  there  being  according  to  Lord 
Coke,  "a  tacit  condition  annexed  to  the  franchise,  which,  if  he 
break,  he  may  be  disfranchised." 3  Surely,  there  is  here  no 
such  tacit  condition  annexed  to  the  right  of  a  resident  of  a  mu- 
nicipality to  be  and  remain  a  corporator,  though  there  may  be 
a  similar  condition  annexed  to  municipal  offices.  Wilfully  to 
destroy  or  falsify  the  charter  or  books  of  a  municipal  corpora- 
tion is  an  act  which  is  punishable  by  the  criminal  codes  of 
the  different  states,  and  if  the  offender  is  convicted  and  im- 
prisoned, it  may  result  as  an  incident  of  such  conviction  that 
he  will  cease,  for  the  time,  to  be  a  resident,  and  hence,  will 
cease  to  be  a  member  of  the  corporation ;  but  the  corporation 
itself  has  no  power  to  disfranchise  him,  that  is,  to  deprive  him 

1  Grant,  263.  "This  right  [of  disfranchisement]  has  been  but  sparingly- 
exercised,  though  it  is  undoubtedly  an  incident  to  every  corporation,  with, 
perhaps,  some  exceptions  in  cases  of  trading  and  monetary  bodies."  lb. 
Willcock  (271  pi.  709)  denies  that  it  is  an  incidental  right,  and  claims  that 
the  rule  laid  down  in  the  second  resolution  (Bagg's  Case)  on  this  point,  that 
"  no  freeman  of  any  corporation  can  be  disfranchised  by  the  corporation, 
unless  they  have  authority  to  do  so  by  the  express  words  of  the  charter,  or 
by  prescription,"  is  the  law.  Mr.  Glover  simply  adopts  Mr.  Willcoek's  lan- 
guage :  Glover,  335.  Mr.  Kyd's  exposition  of  the  second  resolution  in 
Bagg's  Case,  2  Kyd,  52.  And  see  leading  case  of  Rex  «.  Richardson,  1  Burr. 
517,  which  was  a  case  of  amotion,  but  has  been  often  taken  as  asserting  an 
incidental  power  to  disfranchise  for  cause  as  well  as  amove.  Angell  & 
Ames,  Sees.  408,  409  ;  see  generally,  Commonwealth  v.  St.  Patrick's  Society, 
2  Binn.  448, 1810;  Evans  v.  Philadelphia  Club,  50  Pa.  St.  107 ;  Hopkinson  v. 
Marquis  of  Exeter,  Law  Rep.  5  Eq.  63 ;  State  v.  Georgia  Med.  Soc.  Am.  Law 
Reg.  (N.  S.)  533,  Mr.  Mitchell's  note. 

2  Mayor  v.  Pilkinton,  1  Keb.  597 ;  Rex  v.  Chalke,  5  Mod.  257 ;  1  Lord 
Raym.  226 ;  Grant,  Corp.  265. 

3  11  Coke,  98,  a. 


OH.  IX.J  AMOTION   AND   DISFRANCHISEMENT.  217 

of  the  privileges  and  rights,  without  absolving  him  from  the 
liabilities  of  other  citizens,  while  he  remains  within  the  limits 
of  the  municipality. 

§  179.  The  power  to  amove  a  corporate  officer  from  his  office, 
for  reasonable  and  just  cause,  is  one  of  the  common  law  inci- 
dents of  all  corporations.1  This  doctrine,  though  declared 
before,2  has  been  considered  as  settled  ever  since  Lord  Mans- 
field's judgment  in  the  well  known  case  of  the  King  against 
Richardson}  It  is  there  denied  that  there  can  be  no  power  of 
amotion  unless  given  by  charter  or  prescription ;  and  the  con- 
trary doctrine  is  asserted,  that  from  the  reason  of  the  things 
from  the  nature  of  corporations,  and  for  the  sake  of  order  and 
government,  the  power  is  incidental. 

§  180.  But  the  power  to  amove,  like  every  other  incidental 
power,  is  incident  to  the  corporation  at  large,  and  not  to  any 
select  body  or  particular  part  of  it,  and  unless  delegated  to  a 
select  body  or  part,  it  must  be  exercised  by  the  whole  corpora- 
tion, and  at  a  corporate  assembly  regularly  and  duly  convened.* 

1  Bex  v.  Eichardson,  1  Burr.  517 ;  Bex  v.  Liverpool,  2  Burr.  723 ;  Bex  v. 
Doncaster,  2  Burr.  738 ;  Jay's  Case,  1  Vent.  302 ;  Lord  Bruce's  Case,  2  Stra. 
819 ;  Bex  o.  Ponsonby,  1  Ves.  Jr. ;  Bex.  v.  Lyme  Begis,  Doug.  153 ;  Bex  v. 
Tidderly,  1  Sid.  14,  per  Hale,  C.  B. ;  Bex  v.  Taylor,  3  Salk.  231 ;  1  Boll.  Bep. 
409 ;  S.  C.  3  Bulst.  189 ;  Bex  s.  Chalke,  1  Lord  Baym.  225 ;  Bex  v.  Heaven,  2 
Term  E.  772 ;  Beg.  o.  Newbury,  1  Queen's  Bench,  751 ;  2  Kyd,  50-94,  where 
the  old  cases  are  digested;  Glover,  Chap.  XVI. ;  Willc.  246;  Grant,  240; 
Angell  &  Ames,  Chap.  XII. ;  2  Kent  Com.  297. 

a  Lord  Bruce's  Case,  2  Stra.  819,  820 ;  Tidderley's  Case,  1  Sid.  14,  per  Hale, 
C.  B. 

s  Eex  v.  Eichardson,  1  Burr.  517  (31  George  II.)  "  It  is  necessary  to  the 
good  order  and  government  of  corporate  bodies  that  there  should  be  such 
power  [amotion],  as  much  as  the  power  of  making  by-laws."    lb. 

*  Lord  Bruce's  Case,  2  Stra.  819 ;  Bex  v.  Lyme  Begis,  Doug.  153 ;  Bex  v. 
Eichardson,  supra  ;  Eex  v.  Doncaster,  Say.  38 ;  Eex  v.  Taylor,  3  Salk.  321 ; 
Eex  v.  Feversham,  8  T.  E.  356 ;  Fane's  Case,  Doug.  153 ;  Willc,  246,  pi.  629 ; 
Grant,  240,  241 ;  2  Kyd,  56 ;  Glover,  329 ;  State  v.  Jersey  City,  1  Dutch.  (N. 
J.)  536, 1856.  Even  if  the  right  to  elect  an  officer  be  in  a  particular  person 
or  select  class,  the  power  to  amove  is  not  incidental  to  it,  but  unless  ex- 
pressly changed  or  limited  by  charter,  it  belongs  to  the  corporation  at  large 
Lord  Mansfield  seemed  to  be  of  opinion  that  it  was  competent  to  transfer 
this  power  from  the  whole  body  to  a  select  body  by  an  ordinance,  or  by 
law:  Bagg's  Case,  11  Co.  99,  a;  Eex  v.  Eichardson,  1  Burr.  539.  But  this 
question  seems  not  to  have  been  directly  determined :  Willc.  247,  pi  634 ; 
ib.  248,  pi.  635 ;  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  536. 
28 


218  MUNICIPAL   CORPORATIONS.  [CH.  IX. 

The  power  to  hold  such  an  assembly  is,  however,  implied  in 
the  power  of  amotion.1 

§  181.  By  the  corporation  at  large,  as  here  used,  is  meant  the 
different  ranks  and  orders  which  compose  it,  including  the 
definite  and  indefinite  bodies.  The  essentials  in  such  a  cor- 
poration of  a  valid  corporate  assembly  have  elsewhere  been 
described.  Our  corporations,  however,  have  no  ranks,  orders, 
or  integral  parts  corresponding  strictly  to  the  constitution  of 
an  old  English  corporation.  Here  the  common  council,  or 
the  elective  governing  body  (whatever  name  be  given  to  it), 
exercises  all  of  the  powers  of  the  incorporated  place.  Has  the 
council,  as  the  representative  of  the  corporation,  the  incidental 
powers  of  a  corporation,  such  as  the  power  to  amove,  or  the 
power  to  ordain  by-laws  ?  or  is  the  council  in  the  nature  of  a 
select  body,  possessing  no  right  to  exercise  any  of  the  ordinary 
incidental  powers  of  the  corporation,  unless  expressly  author- 
ized by  charter  or  legislative  grant  ?  The  question  not  being 
judicially  settled  as  to  our  municipal  corporations,  the  opinion 
is  ventured  that,  in  the  absence  of  an  express  grant  or  statute 
conferring  or  limiting  the  power,  the  common  council  of  one 
of  our  ordinary  municipal  corporations  does  possess  the  inci- 
dental power  not  only  to  make  by-laws,  but,  for  cause,  to 
expel  its  members,  and,  for  cause,  to  remove  corporate  oflacers, 
whether  elected  by  it  or  by  the  people.  Whatever  necessity 
or  reason  exists  for  the  right  of  amotion  at  common  law  with 
respect  to  the  corporation  at  large,  exists  here  with  respect  to 
that  authorized  body  by  which  alone  the  corporation  acts,  and 
which  exercises  all  its  powers  and  functions.  All  of  the  in- 
habitants cannot  meet  and  act  in  their  primary  capacity,  except 
in  organizations  like  the  towns  in  the  JSew  England  states,  and 
if  the  right  of  amotion  exist  at  all,  it  must  be  exercised  by  the 
council  or  governing  body  of  the  corporation.  If  it  does  not 
exist  in  the  council,  it  cannot  be  delegated  to  it  by  an  ordinance 
or  by  any  act  of  the  corporation,  though  if  the  right  does  exist, 
its  exercise  may,  of  course,  be  regulated  by  ordinance  or  by- 
law.2 

1  Fane's  Case,  Doug.  153 ;  Rex  v.  Lyme  Regis,  ib.  149. 

2  See,  generally,  Willard's  Appeal,  4  Rh.  Is.  597  ;  State,  &c.  v.  Trustees,  &c. 
5  Ind.  89  ;  State  ».  Bryce,  7  Ohio,  part  II.  p.  82  ;  Commonwealth  v.  St.  Pat- 


[CH.  IX.  AMOTION   AND    DISFRANCHISEMENT.  219 

§  182.  A  provision  in  a  city  charter  vesting  the  board  of 
aldermen  with  the  sole  power  to  try  all  impeachments  of  city 
officers,  the  judgment  only  extending  to  removal  and  disquali- 
fication to  hold  any  corporate  office  under  the  charter,  is  not 
unconstitutional  as  authorizing  the  exercise  of  judicial  powers 
by  a  legislative  or  municipal  body,  but  is  rather  the  exercise 
of  a  power  necessary  for  its  police  and  good  administration.1 

rick's  Society,  2  Binn.  (Pa.)  448 ;  Commonwealth  v.  Bussier,  5  Serg.  &  Rawle, 
451;  Commonwealth  v.  Guardians,  &c.  6  Serg.  &  Rawle,  469;  Common- 
wealth v.  Sutherland,  3  Serg.  &  Rawle,  145;  Johns  ».  Mcholls,  2  Dall.  184 ; 
1  Yeates,  80 ;  People  v.  Comptroller,  &c.  20  Wend.  595 ;  State,  &c  v.  Lingo  , 
26  Mo.  496 ;  Fawcett  v.  Charles,  13  Wend.  473  ;  Hoboken  v.  Gear,  3  Dutch. 
265  ;  People  v.  Board  of  Trade,  45  111.  112,  1867  ;  Neall  v.  Hill,  16  Cal.  145  ; 
State  v.  Chamber  of  Commerce,  20  Wis.  63 ;  People  v.  Medical  Society,  24 
Barb.  570;  Evans  v.  Philadelphia  Club,  50  Pa.  St.  107  ;  State  v.  Georgia  Med- 
ical Society,  8  Am.  Law  Reg.  (N.  S.)  533,  and  note  ;  Smith  v.  Smith,  3  Desaus. 
557.  But  see  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  536,  in  which  the  power 
to  expel  a  member  of  the  council  was  expressly  conferred,  but  where  Mr. 
Justice  Potts,  delivering  the  opinion  of  the  court,  says:  — 

"  The  rule  is  well  settled,  that  a  corporation  has,  at  common  law,  an  in- 
herent jurisdiction  to  expel  a  member  for  sufficient  cause.''  After  noticing 
the  offences  which  will  justify  expulsion,  he  adds :  "  But  the  jurisdiction  in 
this  case  is  not  derived  from  the  common  law.  The  common  council  is 
not  the  corporation,  and,  whatever  powers  a  municipal  corporation  may 
have  to  amove  or  expel  a  member  at  common  law,  it  is  clear  that  the  cor- 
poration itself  has  not,  by  any  by-law,  delegated  any  of  them  to  the  com- 
mon council,  and  that  body,  therefore,  cannot  avail  itself  of  the  common 
law  jurisdiction,  vested  as  an  inherent  right  in  the  corporation  itself  to 
expel  a  member  of  their  own  body :  2  Bac.  Abr.  21,  title  Corporations;  Willc. 
on  Corp.  629.  The  eouncil  derives  its  jurisdiction  from  the  charter  of  the 
corporation."  This  case  rules  that  where,  in  express  terms,  the  right  of  the 
council  to  expel  a  member  for  certain  causes  is  given,  it  cannot  exercise 
the  power  for  any  other  cause.  And  it  would  seem  to  be  the  opinion  of  the 
court,  or  at  least  of  the  judge  delivering  the  opinion,  that  the  common  law 
power  of  expulsion  belonging  to  a  corporation  could  not  be  exercised  by 
the  common  council,  that  body  not  being  the  corporation  in  which  the 
power  is  vested. 

1  State  v.  Ramos,  10  La.  An.  420.  See  People  v.  Bearfield,  35  Barb.  254 ; 
supra,  Sec.  139.  A  board  of  aldermen  sitting  in  a  judicial  capacity  as  a 
court  of  impeachment  to  try  charges  preferred  against  a  city  officer  by 
another  branch  of  the  municipal  governing  body,  is  a  court  of  limited  juris- 
diction, and  if  not  sworn,  or  not  sworn  by  an  officer  authorized  to  adminis- 
ter oaths,  their  proceedings  and  judgment  of  guilty  are  void,  and  create  no 
vacancy:  Tompert  v.  Lithgow,  1  Bush  (Ky.),  176,  1866.  See  Hadley  v. 
Mayor,  &c.  33  N.  Y.  603,  cited  infra,  Sec.  191,  note. 


220  MUNICIPAL   CORPORATIONS.  [CH.  IX. 

§  183.  When  the  terms  under  which  the  power  of  amotion 
is  to  be  exercised  are  prescribed,  they  must  be  pursued  with 
strictness.1  Whether,  if  the  power  to  expel  or  remove  .be  given 
for  certain  causes,  this  excludes  the  right  to  exercise  the  power 
in  any  other  case,  will  depend  upon  the  intent  of  the  legisla- 
ture to  be  gathered  from  a  consideration  of  the  whole  charter 
or  statute.  Power  to  appoint  "subject  to  removal  only  for,'' 
&c,  clearly  limits  the  power  of  removal  to  the  specified  causes.2 
Express  power  of  expulsion  or  removal  for  specified  reasons 
was,  in  New  Jersey  and  in  Georgia,  considered  to  exclude  any 
implied  power,  or  to  limit  the  right  to  the  enumerated  causes.3 

§  184.  A  charter  of  a  municipal  corporation  gave  to  the 
common  council  express  power  to  "  expel  a  member  for  disor- 
derly conduct,"  and  one  of  the  aldermen  being  guilty  of  official 
corruption  in  receiving  bribes,  was,  after  a  hearing,  expelled 
from  the  council.  The  court  was  of  opinion  that  the  question 
as  to  the  right  to  expel  for  the  conduct  charged,  depended 
upon  the  construction  of  the  words  "  disorderly  conduct,"  and 

1  State  v.  Lingo,  26  Mo.  (5  Jones)  496 ;  State  v.  Trustees  of  University,  5 
Ind.  77,  89,  1854 ;  State  «.  Bryee,  7  Ohio,  part  II.  p.  82 ;  State  «.  Chamber  of 
Commerce,  20  Wis.  63  ;  ,  Regina  v.  Sutton,  10  Mod.  76 ;  Paston  v.  Urber, 
Hutt.  103  ;  Eegina  v.  Ricketts,  7  Ad.  &  El.  966  ;  Regina  v.  Oxford,  6  Ad.  & 
El.  349;  Commonwealth  v.  Sutherland,  3  Serg.  &  Rawle,  145;  Common* 
wealth  v.  Shaver,  3  Watts  &  S.  338.  In  the  Queen  v.  Sutton,  supra,  so  strictly 
was  a  clause  in  a  charter  conferring  the  right  of  rempval  construed,  that  it 
was  held  that  where  acts  were  to  be  done  by  a  majority,  that  word  was  to 
be  understood  as  a  majority  of  the  whole  corporation,  and  that  if  the  officer 
whose  removal  was  proposed  was  a  member,  it  could  be  effected  only  by  a 
majority  of  all  the  members,  including  himself,  and  that  his  personal  inter- 
est did  not  exclude  him  from  voting  as  a  member  upon  the  question.  See, 
also,  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  536 ;  Madison  v.  Korbly,  32  Ind. 
74;  State  v.  McGarry,  21  Wis.  496,  where  "other  cause"  for  removal  was 
held  to  mean  "other  like  cause." 

2  People  v.  Higgins,  15  111.  110. 

s  State  s.  Jersey  City,  1  Dutch.  536,  1856 ;  The  Mayor,  &c.  v.  Shaw,  16  Ga. 
172,  1854.  See  S.  C.  19  ib.  468 ;  21  ib.  280 ;  25  ib.  590.  But  see  Common- 
wealth v.  St.  Patrick's  Society,  2  Bihn.  441 ;  4  ib.  448 ;  Angell  v.  Ames,  Sec. 
415.  Under  the  Illinois  statute,  it  is  held  that  the  county  authorities  do  not 
possess  general  powers  of  removal,  and  that  they  cannot  remove  a  treasurer 
elected  by  the  people,  except  for  causes  specified  in  the  statute ;  but  it  may 
be  observed  that  a  county  treasurer  is  not  a  corporate  officer :  Clark  v.  The 
People,  15  111.  213, 1853. 


OH.  IX.]  AMOTION   AND   DISFRANCHISEMENT.  221 

it  held  that  receiving  bribes  for  his  official  influence  and  votes 
was  disorderly  conduct,  within  the  meaning  of  the  charter.1  In 
another  case,  the  charter  authorized  the  council  "to  dismiss 
the  marshal  for  malpractice  in  office,  or  neglect  of  duty," 
and  it  was  held  that  the  council  could  not  remove  this  officer 
for  the  crime  of  gambling,  as  this  was  neither  malpractice  in 
office,  nor  official  neglect,  within  the  meaning  of  the  charter.2 

§  185.  The  power  to  expel  a  member  of  the  council  does 
not  authorize  a  resolution  by  it  that  "  the  president  of  the  coun- 
cil be  directed  not  to  appoint  a  certain  member  on  any  commit- 
tee, nor  call  his  name,  nor  allow  him  to  take  part  in  the  action 
of  the  board,"  since  this  would  create  no  vacancy  which  could 
be  supplied,  but  would  leave  the  seat  occupied,  while  it  silenced 
the  occupant,  and  left  his  constituents  unrepresented.3 

§  186.  The  expulsion  of  a  member  of  the  common  council 
does  not  disqualify  him  from  being  re-elected  to  the  same  office, 
unless  it  is  expressly  so  provided  by  the  charter,  for  where  the 
law  annexes  a  disqualification  to  an  offence,  it  does  so  in  terms. 
Hence,  if  a  member  having  been  expelled,  even  for  bribery,  be 
re-elected,  he  cannot  be  expelled  a  second  time  for  the  same 
identical  act  for  which  he  had  before  been  expelled.4 

§  187.  It  was  held  in  a  case  in  Rhode  Island  that  a  clerk 
of  a  school  committee, —  an  officer  created  by  the  school  law, 
and  necessary  to  the  organization  and  legal  action  of  the  com- 

1  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  536,  1856. 

2  Mayor  v.  Shaw,  &c.  16  Ga.  172,  1854. 

3  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  536, 1856.  Whether,  pending  pro- 
ceedings to  expel,  a  member  can  be  suspended  from  his  duties,  was  a  ques- 
tion not  determined  in  the  case  ;  but  in  the  State,  &c.  v.  Lingo,  26  Mo.  496, 
1858,  it  was  held  that  the  power  to  provide  for  removing  from  office  corporate 
officers  gives  the  power  to  suspend  from  office  during  the  investigation  of 
the  charges  for  which  the  suspension  was  made.  The  court  say,  "The 
power  to  remove  necessarily  includes  the  minor  power  to  suspend."  lb.  499. 

*  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  536,  1856.  If  the  common  council, 
without  authority,  suspend  a  member  from  the  duties  of  his  office,  man- 
damus is  a  proper  remedy  to  restore  him  to  the  exercise  of  his  legal  rights. 
lb.  Willc.  on  Municipal  Corporations,  368,  pi.  74,  75 ;  ib.  377,  pi.  96 ;  3 
Blacks.  Com.  110 ;  Rex  v.  Barker,  3  Burr.  1266 ;  Angell  &  Ames  on  Corpora- 
tions, Sec.  702,  706. 


222  MUNICIPAL    CORPORATIONS.  [CH.  IX. 

mittee, — may,  after  an  election  by  the  committee,  be  removed 
from  office  by  the  committee,  but  only  for  cause,  as  the  statute 
gives  no  express  power  to  remove,  and  after  due  notice  and 
opportunity  given  him  to  defend  himself  upon  the  charges 
presented.1 

§  188.  Where  an  officer  is  appointed  during  pleasure,  or  where 
the  power  of  removal  is  discretionary,  the  power  to  remove  may 
be  exercised  roithout  notice  or  hearing.  But  where  the  appoint- 
ment is  during  good  behavior,  or  where  the  removal  can  only  be 
for  certain  specified  causes,  the  power  of  removal  cannot,  as  will 
presently  be  shown,  be  exercised,  unless  there  be  a  charge 
against  the  officer,  notice  to  him  of  the  accusation,  and  a  hearing 
of  the  evidence  in  support  of  the  charges,  and  an  opportunity 
given  to  the  party  of  making  defence.2 

1  Willard's  Appeal,  4  (Rh.  Is.)  595,  597,  per  Ames,  C.  J.,  who  says,  "  such  a 
power  with  regard  to  such  an  officer,  unless  expressly  forbidden  by  law,  is 
incidental  to  the  committee  as  necessary  to  enable  it  duly  to  perform  its 
functions:"  lb.  p.  601.  It  is  sufficient  cause  for  the  removal  of  such  a  clerk, 
that  he  refuses  to  produce  papers  which  belong  to  the  body  which  elected 
him,  and  of  which  he  is  simply  the  custodian,  or  refuses  to  keep  or  amend 
the  records  when  duly  ordered  to  do  so.    lb. 

2  Field  v.  Commonwealth,  32  Pa.  St.  478,  1859;  Ex  parte  Ramshay,  83  Eng. 
Com.  Law,  174,  189,  1852  ;  Ex  parte  Hennen,  13  Pet.  (U.  S.)  230 ;  Queen  v. 
Governors,  &c.  8  Ad.  &  El.  682 ;  Bagg's  Case,  11  Coke,  98  (6) ;  Rex  v.  Coven- 
try, 1  Ld.  Raym.  391 ;  Dr.  Gaskin's  Case,  8  T.  R.  209 ;  Rex  v.  Oxford,  1 
Salk.  428;  Rex  v.  Mayor,  &o.  1  Lev.  291;  2  Kyd,  58,  59;  Willc.  253/254; 
Grant,  244 ;  Rex  v.  Andover,  1  Ld.  Raym.  710 ;  Page  v.  Hardin,  8  B.  Mon. 
648 ;  Hoboken  a.  Gear,  3  Dutch.  265 ;  Madison  «.  Korbly,  32  Ind.  74, 1869 ; 
Stadler  v.  Detroit,  13  Mich.  346,  1865.  As  to  the  removal,  by  the  appointing 
power,  of  officers,  the  duration  of  whose  term  is  not  fixed,  see  People  v. 
Comptroller,  &c.  20  Wend.  595 ;  Commonwealth  v.  Sutherland,  3  Serg.  & 
Rawle,  145 ;  Field  v.  Girard  College,  54  Pa.  St.  233. 

It  is  the  law  in  England,  as  applied  to  the  old  corporations,  that  causes 
which  disqualify  the  person  to  he  an  officer  will  not  authorize  the  corpora- 
tion to  amove  him,  but  he  must  be  ousted  by  quo  warranto.  The  reason 
given  is,  that  one  so  disqualified  is  not,  in  law,  a  corporate  officer,  and  hence, 
cannot  be  amoved  as  such  by  the  corporation  :  Rex  o.  Doncaster,  Say.  40 ; 
Buller,  N.  P.  203 ;  Rex  v.  Lyme  Regis,  Doug.  85 ;  Symmers  e.  Regem, 
Cowp.  502 ;  Willc.  259,  pi.  669 ;  ib.  281,  pi.  728.  And  see  Fawcett  v.  Charles, 
±"6  Wend.  473, 1835.  It  has  elsewhere  been  shown,  that  with  us,  the  coun- 
cils of  municipal  corporations  are  often  made  judges  of  the  qualifications  of 
their  members  and  officers,  and  this  may  modify  or  change  the  rule  above 
mentioned,  which  seems  to  rest  on  narrow  and  technical  grounds. 


CH.  IX.]  AMOTION   AND   DISFRANCHISEMENT.  223 

§  189.  In  the  leading  case  of  the  King  against  Mchardson, 
the  point  was  decided,  as  above  mentioned,  that  a  corporation, 
in  the  absence  of  an  express  grant  of  authority,  had  the  inci- 
dental power  to  make  a  by-law  to  remove  officers  for  just  cause. 
Lord  Mansfield,  in  that  case,  classified  the  oifences  which 
would  justify  the  exercise  of  the  power;  and  his  judgment 
therein  has  been  followed  both  in  England  and  in  this  coun- 
try, in  cases  arising  in  private  corporations  not  of  a  pecuniary 
character.  According  to  Lord  Mansfield,  there  are  three  sorts 
of  offences  for  which  an  officer  or  corporator  may  be  dis- 
charged :  1.  Such  as  have  no  immediate  relation  to  his  office,  but 
are  themselves  of  so  infamous  a  nature  as  to  render  the  offender 
unfit  to  execute  any  public  franchise.  2.  Such  as  are  only 
against  his  oath  and  the  duty  of  his  office  as  a  corporator ;  and 
amount  to  breaches  of  the  tacit  condition  annexed  to  his  fran- 
chise or  office.  3.  Offences  of  a  mixednature — as  being  an  offence 
not  only  against  the  duty  of  his  office,  but  also  a  matter  in- 
dictable at  the  common  law.1  In  offences  of  the  first  class  the 
removal  can  only  be  made  after  there  has  been  a  previous  con- 
viction in  a  court  of  law ;  and  an  amotion  will  not  be  sustained 
by  a  subsequent  conviction.2  In  offences  of  the  second  class 
the  corporation  may  try,  and  if  the  charge  is  established,  re- 
move,  without   any  previous    or   other  proceedings   in   the 

1  Eex  v.  Richardson,  1  Burr.  517,  538,  1758 ;  followed,  Bex  v.  Liverpool,  2 
ib.  723.  So,  also,  in  Commonwealth  v.  St.  Patrick's  (Benevolent)  Society,  2 
Binn.  441,  1810;  Commonwealth  v.  Guardians,  &c.  6  Serg.  &  Bawle,  469, 
1821.  These  cases  adopt  Lord  Mansfield's  classification,  and  assert  the  in- 
herent power  of  corporations  to  expel  for  offences  falling  within  any  of  the 
three  classes.  See,  also,  Butch.  Benef.  Ass.  35  Pa.  St.  151 ;  38  ib.  278 ;  Evans 
v.  Philadelphia  Club,  50  Pa.  St.  107 ;  Society,  &c.  v.  Commonwealth,  52  Pa. 
St.  125. 

The  courts  may,  by  mandamus,  compel  a  corporation  to  amove  an  officer ; 
and  the  result  of  the  cases  on  this  point  is  considered  to  be  that  where  the 
offence  of  the  officer  is  such  that  the  corporation  has  the  power  to 
amove,  the  court  will  only  compel  it  to  do  so  where  some  one  is  injured  by 
the  omission  to  remove ;  but  where  it  is  required  to  amove,  or  the  office  is 
declared  by  the  charter  or  statute  to  be  void  if  such  an  act  be  done  or 
omitted,  there  the  court  will  compel  it  to  amove,  though  no  one  be  shown 
to  have  been  aggrieved :  Eex  v.  Truro,  3  Barn.  &  Aid.  592 ;  Eex  v.  West 
Looe,  "5  Dowl.  &  E.  416;  Eex  v.  Totness,  ib.  483;  Grant  on  Corp.  243,  and 
note.  , 

2  Eex  v.  Eichardson,  supra,  and  cases  cited  in  last  note. 


224  MUNICIPAL   CORPORATIONS.  [CH.  IX. 

courts.1  In  offences  of  the  third  class  the  English  judges  have 
differed  on  the  point  whether  the  officer  may  or  may  not  he 
removed  before  a  conviction  in  a  court  of  justice.  The  prin- 
cipal cases  and  the  result  on  this  point  are  briefly  stated  in  the 
note.2 

§  190.  Principle  and  sound  policy  require  that  the  implied 
power  of  removal  for  offences  against  the  corporation  be  re- 
stricted to  acts  of  a  serious  nature  directly  affecting  the  rights 
and  interests  of  the  corporation,3  causes  for  removal  have,  in 

1  Eex  v.  Richardson,  supra;  Commonwealth  v.  St.  Patrick's  Society,  supra, 
and  cases  cited  in  preceding  note. 

2  Eex  v.  Carlisle,  Fortesc.  200 ;  S.  C.  11  Mod.  379.  In  this  case  the  cor- 
poration, before  conviction,  amoved  a  capital  citizen  for  giving  a  bribe  to  a 
freeman  and  offering  him  another  to  influence  his  vote  at  the  election  for 
a  mayor.  The  court's  judgment  was  in  favor  of  the  right  to  amove. 
Although  there  might  have  been  a  previous  conviction,  yet  this  being  a 
great  offence  against  the  duty  of  his  office,  the  corporation  might  amove 
without  a  conviction.  In  Rex  v.  Derby,  Cas.  Temp.  Hardw.  155,  Lord  Hard- 
wicke  mistook  the  above  case  on  this  point,  and  inclined  to  think  there 
ought  to  be  a  previous  conviction.  And  such  seemed  also  to  be  the  in- 
clination of  Holt,  C.  J.,  in  Rex  v.  Chalke,  Comb.  397,  where  the  re- 
moval was  before  conviction,  for  criminally  razing  entries  in  the  corpora- 
tion books  which  were  at  first  proper,  but  the  point  was  not  decided.  In 
Haddock's  Case,  T.  Raym.  439,  the  amotion  was  for  riotously  assembling 
and  assaulting  several  corporators,  thereby  impeding  the  business  of  the 
corporation.  It  was  considered  that  the  offence  was  two-fold :  one  against 
the  duty  of  his  offlce'as  a  corporator:  the  other  (wholly  disconnected)  of  a 
riot.  And  as  he  might  be  guilty  of  one  and  yet  be  acquitted  the  other,  the 
corporation  might  amove  without  conviction,  and  the  case  is  said  to  be  dif- 
ferent from  that  of  Chalke  (supra),  for  there  the  officer  could  not  have 
been  guilty  of  the  offence  at  law  without  at  the  same  time  having  been 
guilty  of  a  breach  of  his  duty.  The  cases  decided  are  considered  to  favor 
this  view,  viz :  if  the«ct  is  criminal  and  single  in  its  nature,  so  that  a  con- 
viction or  acquittal  in  the  courts  of  law  will  necessarily  determine  the 
guilt  or  innocence  of  the  party,  there  must  be  a  conviction,  but  otherwise 
there  may  be  a  removal  without,  or  independent  of,  a  conviction :  Buller's 
N.P.  206;  Willc.  249,250,251,  252;  Glover,  331,338;  Grant,  240;  2  Kyd, 
88-94,  where  the  prior  cases  are  digested  and  stated.  Lord  Mansfield,  in 
Rex  v.  Richardson,  1  Burr.  538,  leaves  the  point  untouched.  A  removal  for 
a  riot  in  the  council  chamber,  without  a  previous  conviction,  is  said  to  have 
been  held  good :  Rex  v.  Yates,  Style,  eited  8  Mod.  101.  See,  further :  Earle's 
Case,  Carth.  173;  Rex  ».  Wells,  4  Burr.  1999;  Regina  v.  Newberry,  1  Q.  B. 
751;  2  Bac.  Abr.  (Bouv.  ed.)  476,  and  cases  cited. 

s  Evans  v.  Philadelphia  Club,  50  Pa.  St.  107  ;  Butch.  B.  Ass.  35  Pa.St.  151; 
38  ib.  278  ;  Society,  &c.  «.  Commonwealth,  52  Pa.  St.  125 ;  Commonwealth  v. 
Philadelphia  Society,  5  Binn.  486 ;  State  v.  Common  Council,  9  Wis.  254 ; 
Mayor,  &c.  v.  Geisel,  19  Ind.  344 ;  Same  v.  Wright,  ib.  346. 


CH.  IX.J  AMOTION   AND   DISFRANCHISEMENT.  225 

some  instances,  been  held  sufficient  in  England  which  would 
not,  probably,  be  so  regarded  in  this  country.  The  principal 
English  cases  are  given  in  the  note.  The  sufficiency  and  rea- 
sonableness of  the  cause  of  removal  are  questions  for  the 
courts.1 

1  Rex  v.  Andover,  3  Salk.  229.  Poverty  of  alderman,  so  that  he  could  not 
pay  taxes,  sufficient  cause  for  amoving  him  :  lb ;  but  not  applicable  here. 
But  bankruptcy  insufficient  cause  of  amotion  of  councilman :  Rex  v.  Liver- 
pool, 2  Burr.  723 ;  see  Rex  v.  Chitty,  5  Ad.  &  E.  609.  Total  desertion  of,  duties 
of  office  sufficient  cause :  Buller's  N.  P.  206 ;  Rex  v.  Richardson,  1  Burr. 
541.  When  absence  and  non-attendance  upon  meetings,  and  neglect  of  duty, 
will  be  sufficient  cause :  See  Rex  v.  Richardson,  supra ;  Rex  v.  Wells,  4 
Burr.  2004 ;  1  Hawk.  P.  C.  Chap.  LXVI.  Sec.  1,  as  to  official  neglect  oi  duty; 
approved  by  Lord  Mansfield,  in  case  last  cited ;  Lord  Bruce's  Case,  2  Stra. 
819,  and  notes;  Rex  v.  Ipswich,  2  Ld.  Raym.  1233  ;  S.  C.  Salk.  443 ;  Buller's 
N.  P.  206,  207  :  Lord  Hawley's  Case,  1  Vent.  146 ;  Rex  v.  Harris,  1  Barn.  & 
Ad.  936 ;  Queen  e.  Mayor,  &c.  of  Pomfret,  10  Mod.  107  ;  2  Kyd,  65,  et  seq., 
where  the  older  cases  are  stated ;  Willc.  255-264 ;  Angell  &  Ames,  Sec.  427, 
giving  summary  of  English  cases.  Much  depends  upon  the  cause  of  the 
neglect,  and  whether  the  effect  is  to  obstruct  or  hinder  the  business  of  the 
corporation  or  officer  from  being  done. 

Habitual  drunkenness,  disqualifying  from  the  performance  of  duty,  is  a 
sufficient  cause  to  remove  an  alderman  or  officer  charged  with  magisterial 
functions:  Rex  v.  Taylor,  3  Salk.  231;  1.  Rolle,  409;  3  Bulst.  190.  But 
casual  intoxication,  or  being  drunk  by  accident,  is  not  a  sufficient  cause,  for 
the  reason  (charitably  allowed)  that  this  is  likely  to  happen  to  the  best : 
Rex  v.  Taylor,  supra,  A.  D.  1616.  Old  age  is  insufficient :  Bac.  Abr.  Corp.  E. 
9;  Hazard's  Case,  2  Rolle,  11. 

Mere  threats  or  attempts,  no  injury  resulting,  not  sufficient :  Bagg's  Case,  11 
Coke,  93.  Insulting  language,  or  libel  upon  mayor  or  officers,  held  insuffi- 
cient, on  the  ground  that  personal  offences  are  to  be  punished  by  law,  and 
not  by  the  corporation :  Rex  v.  Oxford,  Palm.  455  ;  Bagg's  Case,  11  Coke, 
93,  96,  97,  98,  99;  Clark's  Case,  2  Cro.  506 ;  Buller's  N.  P.  203  ;  Rex  v.  Lane, 
Portesc.  275;  S.  C.  11  Mod.  270;  Earle's  Case,  Carth.  174;  Willc.  261,  pi. 
680.  See  Regina  v.  Rogers,  2  Ld.  Raym.  777 ;  Innes  v.  Wylie,  1  Carr.  &  P. 
257  ;  Regina  v.  Treasury,  10  Ad.  &  E.  374 ;  2  Perr.  &  D.  498. 

Official  misconduct,  amounting  to  misdemeanor,  has  been  before  men- 
tioned, and  the  cases  cited.  The  misconduct  must,  it  seems,  specially  relate 
to  the  execution  of  the  office :  Rex  v.  Wells,  4  Burr.  1999 ;  see  Regina  v. 
Newberry,  1  Q.  B.  751.  If  the  same  person  hold  two  offices,  misconduct  with 
respect  to  one  will  authorize  removal  from  that  one,  but  not  from  both; 
but  if  the  offence  is  against  the  duties  of  both,  the  removal  may  be  from 
both :  Rex  v.  Chalke,  1  Ld.  Raym.  226 ;  S.  C.  5  Mod,  257 ;  Rex  v.  Doncaster, 
2  Ld.  Raym.  1566 ;  S.  C.  1  Barnard.  265 ;  Rex  v.  Wells,  4  Burr.  1999 ;  Rex  v. 
Harris,  1  B.  &  Ad.  936.  Misemployment  of  corporate  funds  in  his  custody 
is  not  sufficient  cause  of  amotion,  though  generally  it  is  good  cause  of  sus- 
pension from  a  financial  office,  for  the  court  will  not  grant  a  mandamus  to 
29 


226  MUNICIPAL   CORPORATIONS.  CH.  IX.] 

§  191.  Respecting  the  proceedings  to  amove,  it  has  already 
been  observed,  that  they  must  be  had  by  and  before  the 
authorized  body  duly  assembled,  in  conformity  with  the  rules  on 
that  subject,  which  are  elsewhere  stated.1  The  proceeding  in 
all  cases  where  the  amotion  is  for  cause,  is  adversary  or  judicial 
in  its  character ;  and  if  the  organic  law  of  the  corporation  is  si- 
lent as  to  the  mode  of  procedure,  the  substantial  principles  of 
the  common  law  as  to  proceedings  affecting  private  rights 
must  be  observed.2 

§  192.  And  first,  the  officer  is  entitled  to  a  personal  notice  of 
the  proceeding  against  him  and  of  the  time  when  the  triaLbody 
will  meet.  It  is  not  necessary  that  the  notice,  citation,  or  sum- 
mons set  out  the  charges  in  detail,  but  it  should  contain  the 

restore  until  the  accounts  are  made  up  and  submitted  to  the  corporation : 
Eex  v.  Chalke,  1  Ld.  Raym.  266 ;  S.  C.  5  Mod.  259 ;  Rex  v.  London,  2  Term 
R.  182 ;  Willc.  262,  pi.  685 ;  Angell  &  Ames,  Sec.  428.  On  principle,  it  may 
be  suggested  that  if  such  a  thing  as  an  implied  power  of  amotion  exists  at 
all,  it  should  extend  to  a  case  where  the  financial  officer  of  a  corporation  is 
misemploying  its  funds  intrusted  to  his  safe-keeping. 

1  Rex  v.  Taylor,  3  Salk.  231 ;  Rex  v.  Sandys,  2  Barnard.  301 ;  Taylor  «. 
Gloucester,  1  Roll.  409;  S.  C.  3  Bulst.  190;  Rex  v.  Chalke,  1  Ld.  Raym.  226; 
2  Kyd,  57 ;  Grant,  245,  275 ;  Willc.  264 ;  pi.  691 ;  ib.  266 ;  pi.  698.  Necessity 
for  vote  or  corporate  act,  declaring  the  removal  or  expulsion :  Common- 
wealth v.  Pennsylvania,  &c.  Institute,  2  Serg.  &  Rawle,  141 ;  Common- 
wealth v.  German  Society,  15  Pa.  St.  251 ;  Stadler  v.  Detroit,  13  Mich.  346. 

Where,  by  statute,  the  mayor,  recorder,  and  an  alderman  were  constitu- 
ted a  body  to  try  charges  against  policemen  appointed  by  the  corporation, 
with  power  to  suspend  or  remove,  the  presence  of  the  mayor  is  essential  to 
the  constitution  of  the  legal  body,  and  if  one  act,  in  the  trial  of  such  a 
charge,  as  mayor,  who  is  not  such  dejure  [or  de  facto],  the  order  of  removal 
is  void :  Hadley  v.  Mayor,  &c.  38  N.  Y.  603 ;  see  mpra,  Sec.  182.  Special 
provision  of  charter  construed  to  give  the  power  of  removal  to  the  mayor 
and  council,  and  not  to  the  council  alone :  Charles  v.  Hoboken,  3  Dutch. 
(N:  J.)  203. 

s  State  v.  Bryce,  7  Ohio,  Part  II.  pp.  414,  416,  1836.  "  This  proceeding," 
(amoval  of  a  trustee  of  the  university)  "  is  essentially  adversary  ;  the  jus- 
tice of  the  common  law  permits  no  investigation  of  facts  which  may  be 
followed  by  a  loss  of  a  right  or  by  the  infliction  of  a  penalty,  to  be  conduct- 
ed ex  parte."  Ib.  per  Lane,  J.  Murdock  v.  Academy,  12  Pick.  244 ;  State  ®. 
Trustees,  &c.  5  Ind.  77.  Charter  mode,  if  prescribed,  must  be  pursued:  Ib. 
Bacher's  Case,  20  Pa.  St.  425 ;  see  People  v.  Bearfield,  35  Barb.  254 ;  State  v. 
Common  Council,  9  Wis.  254 ;  Madison  v.  Korbly,  32  Ind.  74 ;  Tompert  v. 
Lithgow,  1  Bush  (Ky.),  176, 1866. 


CH.  IX.]  AMOTION   AND   DISFRANCHISEMENT.  227 

substantial  fact  that  a  proceeding  to  amove  is  intended.1  The 
analogies  of  the  ordinary  procedure  in  the  courts  of  the  state 
(in  the  absence  of  statute  or  by-law)  may  be  followed  respect- 
ing such  details  as  the  notice  or  summons,  mode  of  service, 
&c.  Notice  may  be  dispensed  with:  1st.  By  appearance  and  an- 
swer to  the  charges.2  2d.  By  a  total  desertion  of  the  place,3 
so  that  it  is  not  practicable  to  give  the  notice,  as  where  the 
officer  has  permanently,  not  temporarily,  left  the  municipality 
and  resides  constantly  elsewhere  with  his  family.  Though  he 
may  have  been  absent  or  left  the  borough,  yet  if  he  return  and 
be  in  the  place  at  the  time  of  the  amotion,  he  is  entitled  to 
notice.4  If  the  amotion  be  for  good  cause,  such  as  convic- 
tion of  an  infamous  crime,6  or  the  repeated  declaration  of  the 
officer  that  he  would  not  discharge  the  duties  of  his  office,6 
while  it  would  be  more  regular  to  give  the  notice,  yet  its  omis- 
sion will  not  entitle  him  to  a  mandamus  to  be  restored;  for  if 
restored  he  could  be  amoved  again,  and  the  courts  will  not  or- 
der a  restoration  where  they  can  see  that  there  is  good  ground 
of  removal,  and  that  the  order  to  restore  would  be  without 
practical  and  useful  effect.7    "With  these  exceptions,  the  par,ty 

1  Queen  v.  Saddlers  Co.  10  House  of  Lords  Cases,  404 ;  State  v.  Bryce,  supra . 
Rex  v.  Richardson,  1  Burr.  540 ;  Rex  v.  Doncaster,  2  Burr.  738 ;  see  1  B.  & 
Ad.  942;  Rex  v.  Liverpool,  2  Burr.  731 ;  Bagg'sCase,  11  Rep.  99  a;  Rex  v; 
Wilton,  5  Mod.  259 ;  Exeter  v.  Glyde,  4  Mod.  37  ;  Rex  v.  Ipswich,  2  Ld. 
Raym.  1240 ;  Willc.  264,  265 ;  Lines  v.  Wylie,  1  C.  &  K.  257 ;  South  P.  R. 
Co.  5  Ind.  165 ;  People  v.  Benevolent  Society,  24  How.  Pr.  216 ;  Delacey  v. 
Neuse,  &c.  Co.  1  Hawks,  274 ;  Commonwealth  v.  Pennsylvania  Benef.Insti- 
tute,  2  Serg.  &  Rawle,  141 ;  Society  v.  Vandyke,  2  Whart.  309. 

a  Willc.  264 ;  Rex  v.  Wilton,  2  Salk.  428 ;  Rex  v.  Ipswich,  2  Ld.  Raym. 
1240  ;  Rex  v.  Feversham,  8  Term  R.  356 ;  Rex  o.  Carmathen,  1  Maule  &  Sel. 
697;  S.  P.  Commonwealth  v.  Pennsylvania  Benef.  Institute,  2  Serg.  &. 
Rawle,  141. 

3  Willc.  265,  266 ;  Grant,  245 ;  Rex  v.  Harris,  1  B.  &  Ad.  936 ;  Rex  v. 
Shrewsbury,  Cases  Temp.  Hardw.  .151 ;  7  Mod.  202;  Rex  v.  Toneboy,  2  Ld. 
Raym.  1275  ;  II  Mod.  75 ;  Rex  ».  Grimes,  5  Burr.  2601 ;  Rex  v.  Leicester,  4 
Burr.  2089. 

*  Rex  v.  Leicester,  4  Burr.  2089. 

5  Angell  &  Ames,  Corp.  Sec.  422,  where  this  opinion  is  expressed :  Grant, 
265 ;  Rex  v.  Chalke,  1  Ld.  Raym.  226. 

«  Rex  v.  Axbridge,  Cowp.  523 ;  see  2  Term  R.  182  ;  Grant,  Corp.  245. 

'  Rex.D.  Griffiths,  3  B.  &  Aid.  735;  see  Blagrave's  Case,  2  Sid.  6,  49. 
72;  Rex  v.  Rowe,  1  Show.  188;  S.  C.  Carth.  199;  Grant,  Corp.  245.    If  one 


228  MUNICIPAL   CORPORATIONS.  [CH.  IX. 

is  entitled  to  notice  of  the  intention  to  amove,  so  that  he  may 
have  full  and  fair  opportunity  to  be  heard  in  his  defence. 

§  193.  There  must  be  a  charge,  or  charges,  against  him, 
specifically  stated,  with  substantial  certainty ;  yet  the  technical 
nicety  required  in  indictments  is  not  necessary.1  And  rea-. 
sonable  time  and  opportunity  must  be  given  to  ansM-er  the 
charges  and  to  produce  his  testimony ;  and  he  is  also  entitled 
to  be  heard  and  defended  by  counsel,  and  to  cross-examine  the 
witnesses,  and  to  except  to  the  proofs  against  him.2  If  the 
charge  be  not  denied,  still  it  must  be  examined  and  proved.3 
"Where  the  specific  charge  stated  is  insufficient  to  justify  the 
removal,  or  where  the  removal  is  erroneous  and  no  good 
and  sufficient  ground  therefor  appears,  the  officer  is  entitled  to 
a  mandamus  to  restore  him*  But  where  the  proceedings  are  in 
conformity  with  the  charter,  and  a,re  regular,  the  sentence  will 
not  be  inquired  into  collaterally,  nor  its  merits  examined  by 
mandamus  or  action.5 

irregularly  amoved  for  good  cause  be  restored  by  mandamus,  he  uiay  be 
again  amoved  by  regular  proceedings  de  novo :  Taylor  v.  Gloucester.  3  Bulst. 
190 ;  Rex  v.  Ipswich,  2  Ld.  Raym.  1283.  In  such  case  the  office  is  vacated 
from  the  time  of  the  second  amotion ;  the  proceedings  do  not  relate  back  to 
the  former  irregular  amotion :  Willc.  269,  pi.  707. 

1  Tompert  v.  Lithgow,  1  Bush  (Ky.),  176,  1866;  Rex  v  Lyme  Regis,  Doug. 
174;  Bagg's  Case,  11  Co.  99  a;  S.  C.  1  Roll.  225  ;  Glover,  334;  Willc.  267. 

1  State  v.  Bryce,  7  Ohio,  Part  II.  p.  414,  1836 ;  Rex  v.  Richardson,  1  Burr. 
540 ;  Rex  v.  Liverpool,  2  Burr.  734 ;  Murdock  v  Academy,  12  Pick.  244' 
where  the  requisites  of  a  valid  proceeding  to  amove  are  stated ;  Rex  v. 
Chalke,  1  Ld.  Raym.  226 ;  Rex  v.  Derby,  Cas.  Temp  Hardw.  154. 

3  Rex  v.  Feversham,  8  Term  R.  356 ;  Harman  ».  Tappenden,  1  East,  562 ; 
Willc.  267;  Glover,  334;  Murdock  v.  Academy,  12  Pick.  244  A  municipal 
officer,  when  removed  by  the  corporation  appointing  him,  is  entitled  to 
actual  notice  of  his  removal,  and  to  compensation  until  he  receives  such 
notice :  Jarvis  v.  Mayor,  &c.  of  New  York,  2  N.  Y.  Leg.  Obs.  396. 

*  Rex  v.  Ipswich,  2  Ld.  Raym.  1240 ;  Madison  v.  Korbly,  32  Ind  74,  1869 ; 
Commonwealth  v,  German  Society,  15  Pa.  St.  251, 1850 ;  State  v.  Jersey  City, 
1  Dutch.  (N.  J.)  536.  The  restoration  puts  him  in  the  same  situation  that 
he  was  before  the  attempted  removal :  Willc.  269. 

6  Society,  &c.  v.  Commonwealth,  52  Pa.  St.  125,  1866 ;  People  v.  Bearfield, 
35  Barb.  254.  Though  the  amotion  be  illegal,  the  officers  who  took  part  in 
it  are  not  personally  liable,  unless  both  malice  and  want  of  probable  cause  be 
shown  :  Harmen  v.  Tappenden,  3  Espin.  278 ;  S.  C.  1  East,  555 ;  Ferguson  v. 
Earl  of  Kinnoul,  9  CI.  &  F.  289.    Jurisdiction  as  to  the  election  and  amotion  of 


CH.  IX.]  AMOTION    AND   DISFRANCHISEMENT.  229 

§  194.  If  the  amotion  be  legal  and  authorized,  the  office  be- 
comes ipso  facto  vacant  from  the  time  the  amotion  is  declared, 
and  another  person  may  be  elected  or  appointed  to  fill  it.  If 
the  removed  officer  afterward  continues  to  act  he  is  a  mere 
usurper,  and  may  be  ousted  on  quo  warranto  and  punished. 
Amotion  from  one  office  does  not,  of  course,  affect  the  party's 
title  to  another.1 

officers  in  corporations,  when  not  changed  by  statute,  belongs  to  the  Com- 
mon Law  Courts  and  not  to  Equity  :  Attorney  General  v.  Earl  Clarendon, 
17  Ves.  491 ;  Dyer  v.  332;  Cochran  v.  McCleary,  22  Iowa,  75.    Ante,  Sec.  141. 

1  Jay's  Case,  1  Vent.  302  ;  Syminers  v.  Regem,  Cowp.  503  ;  Willc.  268,  pi. 
704 ;  Rex  v.  Doncaster,  2  Ld.  Raym.  1566 ;  1  Barnard.  265  ;  Rex  ».  Chalke,  1 
Ld.  Raym.  226.  Mr.  Willcock,  268,  pi.  704,  whose  language  is  adopted  by 
Glover  (Corp.  334),  states  that,  if  a  person  legally  amoved  continues  to  act, 
he  is  a  mere  usurper,  and  that  "  all  corporate  acts  in  which  he  has  con- 
curred are  equally  void,  as  though  he  had  never  been  elected  or  admitted." 
But  if  he  is  permitted  to  act  after  amotion,  it  would  probably  be  considered, 
in  this  country,  that  his  acts  would,  as  to  third  persons,  be  valid,  like  those 
of  an  officer  de  facto.  If  the  removal  be  unauthorized,  Mr.  Willcock  states 
the  rule  to  be,  "  that  all  corporate  acts  in  which  he  has  concurred  between- 
the  moment  of  his  removal  and  restitution  are  of  equal  validity  as  if  he 
had  never  been  amoved,"  &c. :  Willc.  269,  pi.  707.  If  he  was  regularly 
present  and  concurred,  it  can  well  be  seen  how  this  should  be  so ;  but  his 
concurrence  when  not  regularly  acting,  or  when  a  de  facto  successor  has 
taken  his  place  and  is  acting,  would  not  seem  to  alter  the  legal  quality  of 
the  act.  In  this  country,  the  acts  of  de  facto  officers  are  everywhere  con- 
sidered valid  as  respects  the  public. 


230  MUNICIPAL   CORPORATIONS.  CH.  X.J 


CHAPTER  X. 


Corporate  Meetings. 


§  195.  The  subject  of  Corporate  Meetings  will  be  consid- 
ered under  the  following  general  heads :  — 

1.  Common  Law  Requisites  of  a  Valid  Corporate- Meeting 
—  Sees.  196-199. 

2.  Notice  of  Corporate  Meetings  at  Common  Law  and  Un- 
der the  English  Municipal  Corporations  Act — Sees.  200-203. 

3.  New  England  Town  Meetings ;  Requisites  of  Notice  and 
Power  of  Adjournment — Sees.  204-207. 

4.  Constitution  and  Meetings  of  Councils,  or  of  Select  Gov- 
erning Bodies,  and  herein  of  Quorums  and  Majorities ;  Of  In- 
tegral Parts ;  and  of  Stated,  Special,  and  Adjourned  Meetings 
—Sees.  208-225. 

5.  Mode  of  Proceeding  when  Convened — Sees.    226-230. 

Common  Law  Requisites  of  a  Valid  Corporate  Meeting. 

§  196.  As  respects  their  mode  of  action,  municipal  corpo- 
tions  in  this  country  are  of  two  general  classes.  In  the  one,  as 
in  the  organization  of  towns  in  the  New  England  states,  here- 
tofore adverted  to,  all  of  the  qualified  inhabitants  meet,  act, 
and  vote,  in  person.1  In  the  other,  which  is  the  kind  that  pre- 
vails generally  throughout  the  states,  and  even  in  many  of  the 
larger  places  in  New  England,  the  affairs  of  the  town  or  city 
are  administered  by  a  select  or  representative  body,  usually  de- 
nominated the  Council,  and  which  is  elected  by  the  qualified 
voters  of  the  incorporated  place,  not  assembled  together  in  a 
meeting,  but  at  an  election,  where  each  elector  votes  separate- 
ly and  by  ballot.2 

1  Ante,  Chap.  II.  p.  34,  Sec.  11. 

2  Ante,  Chap.  II.  pp.  34-42 ;  ante,  Chap.  IV. 


CH.  X.]       REQUISITES   03?   A   VALID   CORPORATE    MEETING.  231 

§  197.  The  latter  class  of  corporations  are  properly  muni- 
cipal. The  former  class  are  not  so  strictly  municipal  as  they 
are  public  in  their  character.1  Where  there  is  a  council  or  gov- 
erning body,  the  inhabitants  or  voters,  in  their  natural  capacity, 
have  no  power  to  act  for  or  bind  the  corporation,  but  the  cor- 
poration must  act,  and  can  be  bound  only,  through  the  medium 
of  this  body.  Therefore,  authorized  acts  done  by  the  council 
are  not  their  acts,  but  those  of  the  corporation.  The  council 
is  a  body  which  is  constantly  changing ;  it  is  simply  the  agent 
of  the  corporation.  But  its  members,  it  has  been  well  ob- 
served, are  not  only  not  the  municipal  corporation,  but  are  not 
even  a  corporation.2  Whether  the  corporation  be  of  the  one 
class  or  the  other,  its  affairs  must  be  transacted  at  a  corporate 
meeting,  in  the  one  case  of  the  qualified  inhabitants,  and  in  the 
other  of  the  members  of  the  council  or  governing  body,  duly 
convened  at  the  proper  time  and  place,  and  upon  due  notice  in 
cases  where  notice  is  requisite.3 

§  198.  In  England,  prior  to  the  General  Municipal  Corpo- 
rations Act  of  \&&&f'\he  requisites  of  a  valid  corporate  meeting  de- 
pended upon  the  constitution  of  the  particular  corporation 
under  its  charter  or  prescriptive  usage.  To  constitute  a  corpo- 
rate assembly  there  must,  at  common  law,  be  present,  the  mayor 
or  other  head  officer  (he  being  considered  an,  integral  part  of 
the  corporation,5  in  whose  absence  no  valid  corporate  act 
could  be  done),  a  majority  of  the  members  of  each  select  or 
definite  class  (these  classes  being  also  considered  integral  parts), 
and  some  members  of  the  indefinite  body  (indefinite  in  point  of 
numbers)  usually  styled  the  commonalty,  and  of  each  of  the 
indefinite  classes  if  there  were  more  than  one.6    If  there  were 

1  Ante,  Chap.  I.  p.  28,  Sec.  9 ;  ante,  Chap.  II.  p.  30,  Sec.  10,  and  note.    , 

2  Regina  *.  Paramore,  10  Ad.  &  El.  286 ;  see  Regina  v.  York,  2  Queen's  B. 
850 ;  Mayor  v.  Simpson,  8  Queen's  B.  73.    Ante,  p.  56,  Sec.  19. 

3  Dey  v.  Jersey  City,  19  N.  J.  Eq.  412,  1869;  Baltimore  v.  Poultney,  25  Md. 
18,  1866. 

*  Ante,  Chap.  III.  pp.  47-52. 

6  Ante,  Chap.  III.  p.  46,  Sec.  16.  Further  as  to  mayor,  see  ante,  Chap.  IX. 
relating  to  MunicipaisElections  and  Officers. 

"  Willc.  52,  53,  66 ;  Hex  t.  Atkyns,  3  Mod.  23;  1  Rol.  Ab.  514  ;  Rex  v.  Car- 
ter, Cowp.  59  ;  Rex  v.  Smart,  4  Burr.  2243 ;  Rex  ».  Gaborian,  11  East,  87,  note ; 
Rex  v.  Morris,  4  East,  26 ;  Rex  «.  Bellringer,  4  Term  R.  823 ;  Rex  v.  Miller, 
6  ib.  278 ;  Rex  v.  Varls,  Cowp.  250 ;  Rex  1,.  Monday,  ib.  539. 


232  MUNICIPAL   CORPORATIONS.  [CH.  X. 

no  indefinite  class,  and  the  governing  body  consisted  of  a  select 
or  definite  class,  the  common  law  requisite  of  a  valid  corporate 
assembly  is,  that  a  majority  of  the  select  class  must  be  present, 
and  if  there  was  more  than  one  such  class,  then  a  majority 
each  of  the  select  classes  of  which  the  corporation  is  consti- 
tuted ;  and  the  presence  of  the  mayor  at  a  select  assembly  of 
this  kind  is  not  necessary,  unless  it  is  expressly  required.1  But 
where  a  common  council  exists  (which,  in  contemplation  of 
the  ancient  law,  is  a  meeting  of  the  body  at  large,  or  those  of 
them  who  thought  proper  to  attend,  or  were  considered  by 
their  fellow  freemen  the  men  best  fitted  to  attend),  though 
such  council  has  become  a  select  or  definite  class,  there  the 
presence  of  the  mayor  or  head  presiding  officer  is  necessary  to 
a  valid  assembly,  though  such  presence  be  not  required  by  the 
charter.2 

§  199.  A  majority  of  each  definite  part  means  a  majority  of  the 
number  of  members  of  which  that  part  consists,  not  merely  a 
majority  of  the  existing  members  of  the  part;  but  if  the  act  is 
to  be  done  by  an  indefinite  body  alone,  it  is  valid  if  done  at  a 
meeting  duly  convened,  although  but  a  small  fraction  of  the 
whole  body  at  large  be  present.  But  while  the  presence  of  a 
majority  of  each  definite  integral  part  was  necessary  to  a  valid 
corporate  meeting,  yet  it  is  settled  law  that  a  majority  of  those 
present,  when  legally  assembled,  will  bind  the  rest.3  Not  only 
did  the  law  of  the  old  corporations  in  England  require  the 
presence  of  a  majority  of  the  members  of  each  definite  integral 

1  See  authorities  cited  in  the  last  note. 

2  Willc.  67.  ( 

3  Bex  v.  Bellringer,  4  Term  E.  810, 1792,  and  cases  cited ;  Eex  v.  Miller,  6  ib. 
268 ;  Eex  ».  Monday,  Cowp.  531, 538 ;  Eex  v.  Devonshire,  1  Barn.  &  Cress.  609 ; 
Eex.  v.  Bower,  ib.  492 ;  Eex  v.  May,  4  B.  &  Ad.  843 ;  Eex  ».  Headley,  7  Barn. 
&  Cress.  496 ;  Willc.  216,  pi.  546 ;  Blacket  v.  Blizard,  9  Barn.  &  Cress.  851  ; 
Ex  parte  Sogers,  7  Cow.  526,  1827;  ib.  note  a,  764;  Ex  parte  Willcocks,  7 
Cow.  402,  and  note  462,  463, 1827  ;  Young  v.  Buckingham.  5  Ohio,  485,  489, 
1832;  Buell  v.  Buckingham,  16  Iowa,  284,  1864,  and  cases  cited;  State  v. 
Deliesseline,  1  McCord  (South  Car.),  52,  1821 ;  State  v.  Huggins,  Harper 
(South  Car.),  94,  1824;  Baker  v.  Young,  12  Gratt.  (Va.),  303,  1855,  approving 
Willc.  216.  pi.  546  ;  Labourdette  is.  Municipality,  2  La.  An.  527, 1847 ;  KingB- 
bury  v.  School  District,  21  Met.  99,  1846;  Damon  v.  Granby,  2  Pick.  345, 
355,  1824 ;  Coles  v.  Trustees,  &c.  of  Williamsburg,  10  Wend.  658, 1833 ;  2 
Kent  Com.  293  ;  Angell  &  Ames,  Corp.  Sec.  501. 


CH.  X.]  NOTICE    OF   CORPORATE   MEETINGS.  233 

part,  but  it  went  to  the  extreme  length  of  holding  that  where 
the  presence  of  the  mayor  was  necessary,  he  must  be  the  legal 
mayor,  and  if  he  be  merely  an  officer  de  facto,  and  afterwards 
be  ousted  on  quo  warranto,  all  corporate  acts  done  under  the 
sanction  of  his  office  are  voidable.1  By  reason  of  the  change 
in  the  constitution  of  municipal  corporations  in  England, 
wrought  by  the  Corporations  Act  of  1835,  many  of  the  rules 
respecting  corporate  meetings  are  no  longer  applicable, 
though,  as  we  shall  see,  some  of  them  still  are.  Under  that 
statute  the  corporation  acts,  and  can  only  act,  through  the 
council ;  and  it  is  provided  that  all  questions  shall  be  decided 
by  a  majority  of  the  councillors  present,  including  questions 
of  adjournment;  that  one-third  part  of  the  number  of  the 
whole  council  shall  be  a  quorum ;  that  the  mayor,  if  present, 
shall  preside,  and  if  absent,  that  a  presiding  officer  shall  be 
chosen,  who  shall  have  a  second  or  casting  vote.2 

Notice  of  Corporate  Meetings  at  Common  Law,  and  under  the 
English  Municipal  Corporations  Act. 

§  200.  Due  notice  of  the  time  and  place  of  a  corporate  meeting  is, 
by  the  English  law,  essential  to  its  validity,  or  its  power  to  do 
any  act  which  shall  bind  the  corporation.  Respecting  notice, 
the  courts  in  England  adopted  certain  rules,  which,  since  they 
form  the  basis  of  much  of  tne  statute  law  in  this  country  upon 
the  subject,  and  have  in  the  main,  been  followed  by  our  courts, 
and  are  founded  on  reason,  may  advantageously  be  here  men- 
tioned. All  corporators  are  presumed  to  know  of  the  days 
appointed  by  the  charter,  statute,  usage,  or  by-laws,  for  the 
transaction  of  particular  business,  and  hence,  no  notice  of  such 
meeting  for  the  transaction  of  such  business  is  necessary ,  or 
for  the  transaction  of  the  mere  ordinary  aftairs  of  the  corpora- 
tion on  such  days,  yet  if  it  is  intended  to  proceed  to  any  other 
act  of  importance,  a  notice  is  necessary,  the  ■  same  as  at  any 
other  time. 

1  Eex  v.  Carter,  Cowp.  59 ;  Bex  v.  Hebden,  Anstr.  391 ;  Rex  v.  Dawes,  4 
Burr.  2279 ;  Willc.  54,  55. 

1  5  and  6  Will.  IV.  Chap.  LXXVI.  Sec.  69.  Rawlinson  on  Corp.  (5th  ed.) 
136.    Ante,  Chap.  III.  pp.  47-52. 

30 


234  MUNICIPAL   CORPORATIONS.  [CH.  X. 

§  201.  A  notice,  when  necessary,  must,  if  practicable,  be 
given  to  every  member  who  has  a  right  to  vote,  where  the  act  is 
one  to  be  done  by  a  body  consisting  of  a  definite  class  or 
classes,  and  it  must  be  given  by,  or  issued  by  order  of,  some  one 
who  has  the  authority  to  convene  a  corporate  meeting.  But 
notice  may  be  altogether  dispensed  with,  or  its  necessity  waived, 
by  the  presence  and  consent  of  every  one  of  those  entitled  to  it. 
It  must  be  served  personally  upon  every  resident  member,  or 
left  at  his  house.  If  temporarily  absent,  it  may  be  left  with 
his  family,  or  at  his"  house  or  last  place  of  abode.  An  order 
to  serve  all  is  not  sufficient ;  all,  if  practicable,  must  be  served, 
but  if  the  party  entitled  to  notice  has  entirely  quit  the  mu- 
nicipality, and  has  no  family  or  house  within  its  limits,  notice  is 
not  necessary.  It  must  be  served  a  reasonable  time  before  the 
hour  of  meeting,  of  which  the  court  will  judge  from  all  the 
circumstance  s,  including  usage. 

§  202.  The  notice  must  state  the  time  of  meeting,  and  the 
place,  if  it  be  not  the  usual  place.  It  is  not  necessary  to  state 
what  business  is  to  be  done  when  the  meeting  relates  only  to 
the  ordinary  affairs  of  the  corporation ;  but  when  it  is  for  the 
purpose  of  electing  or  removing  officers,  passing  ordinances, 
and  the  like,  the  fact  should  be  stated,  so  that  members  may 
know  that  something  more  than  the  usual  routine  of  business 
will  be  transacted.  Such  great  importance  is  attached  to  no- 
tice, that  it  can  only  be  waived  by  universal  consent ;  but  if 
every  member  of  a  select  body  be  present  at  a  regular  or  stated 
meeting,  or  at  a  special  meeting,  they  may,  if  every  one  consents, 
but  not  otherwise,  transact  any  business,  ordinary,  or  extraor- 
dinary, though  no  notice  was  given,  or  an  insufficient  notice, 
but  the  unanimity  of  consent  should  plainly  appear  from  their 
recorded  declaration,  acts,  or  conduct.  This  unanimity  is  only 
necessary  to  enter  upon  the  business ;  once  commenced,  the 
usual  rules  which  govern  the  body  and  its  actions  apply.  It  is  to  be 
observed  that  the  foregoing  rules  are  not  applicable  where  they 
are  in  conflict  with  the  charter,  and  hence,  if  this  requires  a 
special  notice,  it  cannot  be  waived,  even  by  consent  of  all.  The 
guildhall  is  the  proper  place  for  the  meeting ;  if  there  be  none, 
the  meeting  should  be  at  the  usual  place  ;    and  if  at  any  other 


[CH.  X.  NOTICE    OF   CORPORATE   MEETINGS.  235 

place,  it  should  be  stated,  to  prevent  fraud  or  surprise.     Acts 
done  at  an  unusual  place  will  be  closely  scrutinized.1 

§  203.  By  the  English  Municipal  Corporations  Act,2  the 
subject  of  meetings,  stated  and  special,  and  the  notice  and 
summons  required  are  made  matter  of  express  regulation.  It 
provides  for  every  borough  or  city  four  quarterly  meetings  of 
the  council  in  each  year,  to  be  held  at  a  fixed  date.  £To  notice 
of  the  business  to  be  transacted  at  these  quarterly  meetings  is 
necessary ;  but  three  days  notice,  by  posting  on  or  near  the 
town  hall,  is  required  of  the  time  and  place  of  every  intended 
meeting.  Power  is  given  to  the  mayor  to  call  special  meetings, 
or,  on  his  refusal,  to  five  members  of  the  council,  in  which 
case,  the  notice  on  or  near  the  door  of  the  town  hall  shall 
state  therein  the  business  proposed  to  be  transacted  at  such 
meeting,  and  in  every  case,  a  summons  (in  addition  to  the  no- 
tice) must  be  left  at  the  usual  place  of  abode  of  every  member 
of  the  council,  or  at  the  premises  occupied  by  him,  in  respect 
of  which  he  is  enrolled  as  a  burgess,  at  least  three  clear  days 
before  the  meeting,  and  no  business  can  be  transacted  not 
specified  in  the  summons.  Power  to  adjourn  meetings  is  ex- 
pressly conferred  upon  the  council  by  the  same  section.3 

1  Authorities  in  support  of  the  last  and  two  preceding  sections  of  the  text : 
Willc.  Chap.  I.  Sec.  42,  et  seq. :  Rex  v.  Hill,  4  B.  &  C.441 ;  Rex  v.  Liverpool,  2 
Burr.  734 ;  Rex  v.  Doncaster,  ib.  744 ;  Rex  v.  Theodorick,  8  East,  545 ;  Rex  v. 
May,  5  Burr.  2682;  Rex  v.  Oxford,  Palm.  453  ;  Rex  v.  Grimes,  5  Burr.  2601 ; 
Kynaston  v.  Shrewsbury,  2  Stra.  1051 ;  Musgrove  v.  Nevison,  1  Stra.  584; 
S.  C.  2  Ld.  Raym.  1359 ;  Rex  v.  Mayor  of  Shrewsbury,  Cases  Temp.  Hardw. 
147 ;  Smith  v.  Darley,  2  House  of  Lords  Cases,  789 ;  Grant  on  Corp.  154-156 ; 
Glover  on  Corp.  Chap.  VIII.  pp.  146-173.  Formerly,  the  rule  that  where 
notice  was  necessary  every  member  must  be  notified,  was  applied  only  to 
the  case  of  definite  bodies,  but  it  has  more  recently  been  declared  to  be  ap- 
plicable, both  to  select  and  indefinite  bodies  of  public  corporations :  Rex 
v.  Langhorne,  4  Ad.  &  El.  538.  See,  also,  Rex  i>.  Faversham,  8  Term  R.  356, 
per  Ld.  Kenyon,  arguendo. 

2  5  and  6  Will.  IV.  Chap.  LXXVI.  Sec.  69.    Ante,  pp.  47-52. 

3  In  construing  this  statute,  it  has  been  held  that  where  the  meeting  is 
an  adjourned  quarterly  meeting,  notice  is  necessary  as  to  any  business 
which  was  not  actually  entered  upon  at  the  general  or  regular  quarterly 
meeting,  but  not  otherwise ;  and  hence,  a  coroner  cannot  be  elected  at  such 
an  adjourned  quarterly  meeting  without  the  notice  and  summons  which 
the  statute  requires:     Regina  v.  Grimshaw,  10  Queen's  Bench,  747,  755. 


236  MUNICIPAL   CORPORATIONS.  [CH.  X. 

New  England  Town  Meetings— Notice  and  Adjournment. 

§  204.  In  New  England  the  inhabitants  are  required  to  be 
notified  or  warned  of  town  meetings.  The  requisites  of  such 
notice,  and  manner  of  giving  it,  are  prescribed  by  statute. 
The  provision  is  quite  general,  that  the  articles  or  matters  to  be 
acted  upon,  shall  be  specified  or  inserted  in  the  notice  or  warrant. 
The  courts  in  those  states  concur  in  requiring  the  statute  as  to 
notice  to  be  faithfully  observed  by  the  officers  charged  with 
the  duty  of  calling  meetings.  Meetings,  to  be  valid,  must  be 
warned  or  notified  according  to  law.  The  rule  of  the  English 
courts  applied  to  indefinite  corporate  bodies,  that  if  all  are 
present  notice  may,  by  unanimous  consent,  be  waived,1  is  not 
regarded  as  applicable  to  the  town  meetings  of  New  England, 
and  hence  a  de  facto  meeting,  not  duly  notified,  though  attended 
by  all  the  voters  capable  of  attending,  is  not  a  valid  meeting, 
and  its  acts  are  void.2 

See  Regina  v.  Thomas,  8  Ad.  &  El.  183 ;  Rex  v.  Harris,  1  B.  &  Ad.  936.  As 
to  notice :  Town  Council,  &c.  v.  Court,  1  E.  &  E.  770 ;  Regina  r,  Whipp,  4 
Queen's  Bench,  141. 

1  Rex  v.  Theodorick,  8  East,  545 ;  ante,  p.  34,  Sec.  11. 

2  Hay  ward  v.  School  District,  2  Cush.  419,  1848  ;  Moor  v.  Newfield,  4 
Greenl.  (Maine)  44,  1826 ;  School  District  v.  Atherton,  12  Met.  105,  1846 ; 
Little  v.  Merrill,  10  Pick.  543 ;  Perry  v.  Dover,  12  Pick.  206 ;  Reynold  v.  New 
Salem,  6  Met.  340 ;  Congregational  Society  v.  Sperry,  10  Conn.  200  ;  Rand  v. 
Wilder,  11  Cush.  294,  1853 ;  Stone  v.  School  District,  8  Cush.  592 ;  Brewster 
v.  Hyde,  7  N.  H.  206 ;  Northwood  v.  Barrington,  9  N.  H.  369 ;  Giles  v.  School 
District,  11  Fost.  304  ;  Lander  v.  School  District,  33  Maine,  239,  1851 ;  Jor- 
dan v.  School  District,  38  Maine,  164,  1854.  So  in  Vermont  it  has  been  de- 
cided that  it  cannot  be  shown,  by  parol,  to  validate  the  levy  of  tax  by  a 
meeting  not  legally  warned,  that  all  of  the  legal  voters  of  the  district  were 
present  at  the  meeting:  Sherwin  v.  Bugbee,  17  Vt.  337,  1845 ;  distinguished 
by  the  court  from  Rex  v.  Theodorick,  8  East,  543.  And  see,  also,  Hunt  v. 
School  District,  14  Vt.  300 ;  Pratt  v.  Swanton,  15  Vt.  147.  A  tax  voted  at  a 
meeting  not  legally  warned  is  illegal,  and  may  be  recovered  back  if  the 
party  did  not  pay  it  voluntarily :  Rideout  v.  School  District,  1  Allen  (Mass.), 
232,  1861.  So  it  may  be  recovered  back  if  the  assessment  is  void:  Gerry  v. 
Stoneham,  1  Allen  (Mass.),  319,  1861 ;  Tobey  v.  Wareham,  2  Allen  (Mass.), 
594.  See  Massachusetts  act  of  1859,  Chap.  CXVIII.  limiting,  in  such  cases, 
the  plaintiff's  right  of  recovery  to  illegal  excess  of  taxation. 

Authority  to  the  clerk  to  call  and  warn  "  the  annual  meetings,"  does  not 
authorize  him  to  call  and  warn  special  meetings  ;  and  the  acts  and  doings 
of  a  special  meeting  thus  called  are  wholly  void :   School  District  v.  Ather- 


CH.  X.]  NEW    ENGLAND   TOWN   MEETINGS.  237 

§  205.  It  is,  however,  sufficient  if  the  purpose  or  object  of  the 
meeting  can  fairly  be  understood  from  the  notice  or  warrant.1 
And  where  the  statute  requires  the  time  and  place  to  be  stated 
jn  the  notice,  its  requirements  must  be  observed,  and  there 
can  be  no  legal  meeting  unless  it  originally  assembles  at  the 
prescribed  time  and  place.  The  law  is  strictly  held  as  to  the 
important  particulars  of  time  aud  place,  as  will  appear  by  the 
illustrations  in  the  notes.2 

ton,  12  Met..  105,  1846.  And  authority  "to  warn''  future  meetings  does  not 
authorize  him  "to  call"  such  meetings:  Stone  v.  School  .District,  8  Cush. 
592,  1851. 

As  to  proof  of  notice,  and  the  return  of  the  person  or  oflicer  making  the 
warning,  and  what  it  shall  show,  see  State  v.  Williams,  25  Maine,  564,  1846, 
and  the  Massachusetts  and  Maine  decisions  therein  cited  and  commented 
on  ;  Christ's  Church  *.  Woodward,  21  Maine  (13  Shep.),  172,  1846  ;  Fossett 
v.  Bearce,  29  Maine,  523,  1849;  Bearce  v.  Fossett,  34  Maine,  575,  1852;  Jor- 
dan v.  School  District,  38  Maine,  164,  1854 ;  Perry  v.  Dover,  12  Pick,  206 ; 
Houghton  v.  Davenport,  23  Pick.  235  ;  Williams  .».  Lunenberg,  21  Pick.  75 ; 
Briggs  v.  Murdock,  13  Pick.  305  ;  Band  «.  Wilder,  11  Cush.  294, 1853 ;  Cardi- 
gan v.  Page,  6  N.  H.  182  ;  State  v.  Donahay,  1  Vroom  (N.  J.),  404;  Hard- 
castle  v.  The  State,  3  Dutch.  (N.  J.)  352.  In  Sherwin  v.  Bugbee,  17  Vt.  337, 
the  strict  view  is  held  that  the  notice  or  warning  must  be  recorded  by  the 
clerk.  If,  as  recorded,  the  time  for  which  the  meeting  was  to  be  holden  is 
not  specified,  the  defect  cannot  be  supplied  by  parol  evidence,  that  in  the 
original  warning  the  hour  for  the  meeting  was  named.  This  decision  was 
not  put  upon  the  ground  that  the  statute  expressly  required  the  warning 
to  be  recorded  (which  it  did  not),  but  upon  the  ground. that  the  statute  in- 
tended that  the  records  should  furnish  all  the  means  for  testing  the  valid- 
ity of  the  proceedings.  See,  also,  Stevens  «.'  Society,  &c.  12  Vt.  688,  1839. 
Presumption  in  favor  of  legality  of  meeting  after  lapse  of  long  time :  Peter- 
borough »>.  Lancaster,  14  N.  H.  382,  392.  Length  of  notice  :  Hunt  v.  School 
District,  14  Vt.  300 ;  Pratt  v.  Swanton,  15  ib.  147. 

Under  a  statute  of  New  York,  the  notice  it  required  of  school  meetings 
held  to  be  directory  only,  and  the  want  of  notice,  when  not  fraudulently  or 
wilfully  omitted,  does  not  render  the  meeting  invalid,  and  its  proceedings 
void :  Marchant  v.  Langworthy,  6  Hill  (N.  Y.),  646 ;  affirmed  in  error,  3 
Denio,  526.    See,  also,  Williams  v.  Larkin,  3  Denio,  114. 

1  School  District  v.  Blakeslee,  13  Conn.  227. 

2  Sherwin  v.  Bugbee,  16  Vt.  439,  444,  1844.  In  reference  to  town  meet- 
ings, the  statute  of  Vermont  requires  that  the  notice  shall  be  in  writing, 
and  shall  "  specify  the  business  to  be  done,  and  the  time  and  place  of  hold- 
ing said  meeting."  Referring  to  this  statute,  Redfield,  J.  (in  Sherwin  v. 
Bugbee,  supra),  says :  "  We  have  no  doubt  the  place  of  holding  the  meeting 
must  be  definitely  specified.  It  would  hardly  do  to  warn  a  meeting  to  be 
held  at  some  place  in  the  district,  or  at  a  designated  village,'or  at  one  of  two 
or  more  dwelling  houses.    So,  too,  in  regard  to  time,  there  seems  to  be  a 


238  MUNICIPAL   CORPORATIONS.  [CH.  X. 

§  206.  Where  the  statute  requires  the  notice  "  to  specify  the 
business  to  be  done."  an  omission  to  comply  with  this  require- 
ment makes  the  meeting  void,  and  it  is  held  that  a  notice 
stating,  generally,  "to  do  any  proper  business,"  is  insufficient, 
and  the  acts  and  votes  of  a  meeting  held  under  it  are  of  no 
binding  or  legal  force.1  Indeed,  the  rule  is  general  that  where 
the  statute  requires  the  business  to  be  stated  in  the  warrant  or 
notice,  this  is  absolutely  essential,  and  the  meeting  must  be 
confined  to  those  matters.2 

propriety  in  having  it  definitely  fixed.  If  the  day,  only,  is  named,  the 
question  immediately  arises,  shall  the  inhabitants  be  required  to  attend  the 
whole  day?  or,  when  can  the  meeting  transact  the  business  for  which  they 
meet,  so  as  to  bind  the  absent  members?  The  fact  that  the  meeting  ad- 
journed to  another  day  and  hour,  will  not  help  the  matter,  on  the  obvious 
principle  that  the  adjourned  meeting  could  have  no  more  authority  than 
the  original  meeting,  which  was  void." 

Where  it  appears  that  a  meeting  was  held  on  the  day  appointed,  it  will 
be  presumed  that  it  was  held  at  a  suitable  time  in  the  day,  and  pursuant  to 
the  notice.  A  meeting  should  be  opened  within  a  reasonable  time  after 
the  hour  specified ;  but  what  is  such  reasonable  time,  depends  upon  circum- 
stances :  School  District  v.  Blakeslee,  13  Conn.  227.  Where  a  meeting  was 
called  at  a  certain  school  house,  it  was  held  to  mean  within  the  walls  of  the 
building.  An  assemblage  of  some  of  the  citizens  in  the  highway  near  the 
school  house,  and  an  adjournment  to  another  place,  is  not  a  legal  meeting, 
and  its  transactions  are  not  binding,  though  the  school  house  was  locked,  and 
the  weather  cold  and  no  fire  in  the  building :  Chamberlain  v.  Dover,  13 
Maine,  466, 1836.  See,  also,  Haines  v.  School  District,  41  Maine,  246,  1856 ; 
Kingsbury  v.  School  District,  12  Met.  99,  1846. 

1  Hunt  v.  School  District,  14  Vt.  300,  1842 ;  Sherwin  v.  Bugbee,  16  Vt.  489; 
S.  C.  17  ib.  337,  444,  1844.  "Such  meetings  are  void  for  all  purposes  of 
transacting  business  not  specified"  in  the  written  notice  required  by  the 
statute :  Ib.  per  Redfield,  J. 

2  lb.  Johnson  v.  Wilson,  2  N.  H.  202 ;  Tucker  v.  Aiken,  7  N.  H.  113 ; 
Baker  v.  Sheperd,  4  Fost.  208. 

By-laws  passed  at  a  town  meeting  not  duly  warned  (as,  for  example, 
where  the  notice  did  not  "specify  the  objects"  of  the  meeting  as  required 
by  statute),  are  void:  Hay  den  v.  Noyes,  5  Conn.  391, 1824  ;  Willard  v.  Kil- 
lingworth,  8  ib.  247.  The  party  claiming  under  a  by-law  must  show  it 
was  passed  at  a  meeting  duly  warned :  8  Conn.  247,  supra.  And  must,  per- 
haps, show  all  the  essentials  of  its  validity,  such  as  due  passage,  publication, 
&c:  Ib. 

Where  the  statute  requires  that  all  matters  to  be  acted  upon  at  the  meet- 
ing shall  be  inserted  in  the  warrant  or  notice,  a  failure  to  do  this  will  avoid 
as  to  both  parties  any  contract  that  may  be  made,  or  any  act  that  may  be 
done,  with  respect  to  a  matter  not  embraced  in  the  warrant  or  notice: 


CH.  X.]  NEW   ENGLAND   TOWN    MEETINGS.  239 

§  207.  At  a  meeting  duly  constituted  and  organized,  a 
majority  of  the  members,  electors,  or  corporators  present,  in 
the  absence  of  any  statute  either  conferring  or  denying  the 
power,  have  the  implied  incidental  corporate  right  to  adjourn 
the  meeting  to  another  time,  either  on  the  same  or  to  a  future 
day,  and,  if  fairly  done,  to  another  place  within  the  corporate 
limits.1 

Cornish  v.  Pease,  19  Maine  (1  Appl.),  184,1841;  Spear  v.  Eobinson,  29  Maine 
(16  Shep.),  531,  1849;  Little  v.  Merrill,  10  Pick.  643;  Blackburn  v.  Walpole, 
9  Pick.  97  ;  Torrey  v.  Millbury,  21  Pick.  64;  ib.  75;  Hasdell  v.  Hancock,  3 
Gray,  526 ;  Jones  v.  Andover,  9  Pick.  146,  1829 ;  Kingsbury  v.  School  Dis- 
trict, 12  Met.  99,  1846 ;  Rand  v.  Wilder,  1 1  Cush.  294, 1853."  But  if  the  mat- 
ter is  embraced,  and  the  meeting  duly  met,  it  is  no  objection  to  its  action 
that  it  was  had  near  the  close  of  the  meeting,  and  when  a  portion  of  the 
voters  had  retired :  Bean  v.  Jay,  23  Maine  (10  Shep.),  117, 1843.  Subsequent 
legal  meeting  may  ratify  acts  of  previous  meeting  not  duly  notified :  Jordan 
®.  School  District,  38  Maine,  164.  By  participating  in  a  meeting  illegally 
called,  a  party  is  not  estopped  to  deny  its  legality :  School  District  v.  Ather- 
ton,  12  Met.  105. 

1  Chamberlain  v.  Dover,  13  Maine  (1  Shep.),  466,  1836;  People  v.  Martin, 
1  Seld.  (N.  Y.)  22,  1851 ;  Hubbard  v.  Winsor,  15  Mich.  146 ;  Kimball  v.  Mar- 
shall, 44  N.  H,  465,  1863 ;  Goodell  v.  Baker,  8  Cowen,  286.  Electors  exclu- 
sive judges  of  necessity  of  adjournment  of  town  meeting,  and  such  adjourn- 
ment to  next  day,  and  at  another  place,  in  the  town  twenty  miles  distant, 
was  considered  lawful:  lb.  The  statute  provided  that  if  at  any  annual 
town  meeting  no  place  is  fixed  by  the  electors  for  the  next  annual  town 
meeting,  such  town  meeting  shall  be  held  at  the  place  of  the  last  annual 
town  meeting:  1  R.  Sts.  N.  Y.  340,  Sec. 3.  Held,  in  People  v.  Martin,  1  Seld 
22,  that  though  the  place  of  meeting  was  thus  contingently  fixed  by  statute, 
the  electors,  being  duly  assembled,  might  adjourn  it  for  the  residue  of  the 
day  to  another  place  in  the  town.  Concluding  his  opinion  in  this  case, 
Paige,  J.,  well  remarks:  "I  confess  that  I  have  had  some  difficulty  in 
coming  to  this  conclusion,  and  I  think  the  power  [which  is  decided  to  exist] 
of  adjourning  a  town  meeting  to  another  time  and  place  may,  under  pecu- 
liar circumstances,  be  oppressively  exercised,  and  lead  to  a  defeat  of  the 
popular  will.  This  power  ought  not  to  be  exercised  except  in  a  case  of 
extreme  necessity:"  1  Seld.  27. 

After  a  valid  adjournment,  acts  by  a  portion  of  the  voters  who  remain  are 
invalid :  Kimball  v.  Lamprey,  19  N.  H.  215.  In  Massachusetts,  an  adjourn- 
ment of  a  meeting  should  appear  of  record,  and  parol  evidence  of  an  adjourn- 
ment to  another  day  is  held  to  be  inadmissible :  Taylor  v.  Henry,  2  Pick. 
397, 1824.  See  State  v.  Jersey  City,  1  Dutch.  (N.  J.)  309,  and  chapter  on  Cor- 
porate Records  and  Documents,  post.  The  statute  of  New  York  (1  R.  Sts.  342) 
only  requires  the  town  meeting  to  be  kept  open  during  the  day  time,  or 
some  part  thereof,  but  not  that  it  shall  be  kept  open  during  the  whole  and 
every  part  of  the  day,  between  the  rising  and  setting  of  the  sun :  People  v. 
Martin,  1  Seld.  (N.  Y.)  22, 1851. 


240  MUNICIPAL   CORPORATIONS.  [CH.  X. 

Constitution  and  Meetings  of  Councils  or  select  governing  bodies;  and 
lierein  of  Quorums  and  Majorities,  of  Integral  Parts,  and  of 
Stated,  Special,  and  Adjourned  Meetings. 

§  208.  Unlike  the  towns  of  New  England,  in  which  all  the 
qualified  voters  meet  and  act  in  their  primary  capacity,  the 
councils  of  cities  and  towns  are  representative  bodies,  the  num- 
ber of  whose  members  is  fixed  by  law,  and  they  are  elected  by 
the  legal  voters  of  the  incorporated  place.  This  council  is  the 
governing  body  of  the  municipal  corporation,  and  the  corpora- 
tion, unless  it  is  otherwise  provided,  can  act  and  be  bound  only 
through  the  medium  of  the  council.1  The  charter  or  constitu- 
ent act  of  the  place  usually  contains  provisions  as  to  the  consti- 
tution of  the  council,  its  stated  and  special  meetings,  and  the 
notice  thereof  requisite  to  be  given,  how  many  shall  constitute 
a  quorum,  and  an  enumeration  of  its  powers.  The  usual 
scheme  of  the  organization  of  the  council  is  to  divide  the  ter- 
ritory of  the  incorporated  place  into  districts  or  wards,  the 
voters  in  each  of  which  elect  one  or  more  representatives  an- 
nually, called  aldermen,  or  councilmen,  and  these  when  duly 
convened,  constitute  the  council,  over  which  the  mayor  or  head 
executive  officer  of  the  corporation  presides,  sometimes  con- 
stituting a  member  of  the  council,  and  in  other  instances,  hav- 
ing power  to  vote  only  when  there  is  a  tie,  or  to  give  a  second 
vote  in  case  of  a  tie.2 

§  209.  The  doctrine  of  the  English  courts  as  to  the  old  cor- 
porations in  that  country,  that  the  mayor  was  an  integral -part  of 
the  corporation,  whose  presence,  unless  otherwise  provided  in 
the  charter,  was  necessary  to  a  valid  corporate  meeting ;  that 
during  a  vacancy  in  the  office  of  mayor,  the  corporation  could 
do  no  valid  act,  unless  expressly  empowered,  except  to  elect 
another,  and  thus  complete  the  body,  and  that  the  acts  of  the 
corporation  under  the  presidency  of  any  other  than  a  mayor 

1  Central  Bridge  Corp.  v.  Lowell,  15  Gray,  106,  116,  1860,  where  an  act 
affecting  a  city  was,  by  its  terms,  to  take  effect  on  acceptance  by  the  city,  it 
was  held  that  the  acceptance  might  be  made  by  the  governing  body.   lb. 

2  Power  to  preside  and  give  casting  vote  at  meetings  of  a  religious  corpo- 
ration construed :    People  v.  Rector,  &c.  48  Barb.  603. 


CH.  X.]  CONSTITUTION   AND    MEETINGS   OF    COUNCILS.  241 

de  jure,  were  voidable,  lias  it  is  believed^  no  application  to  the 
office  of  mayor  in  the  corporations  of  this  country.1 

§  210.  The  right  of  the  mayor  or  other  officer  to  preside  over 
the  meeting  of  the  council  is  a  franchise,  and  may  be  tested  by 
an  information  in  the  nature  of  a  quo  warranto,2  but  cannot  be 
determined,  at  least,  ordinarily,  unless  by  statute  provision,  on 
a  bill  in  chancery  to  enjoin,  or  in  any  other  indirect  or  collafr- 
teral  proceeding.3        > 

1  Infra,  Sec.  222;  Welch  e.  Ste.  Genevieve,  1  Dillon,  C.  C.  130, 1871.  And 
see,  ante,  Chap.  IX.  as  to  powers  and  duties  of  the  mayor. 

The  presiding  officer  of  a  town  meeting,  with  statute  authority  to  main- 
tain order,  may  make  a  valid  order,  though  it  be  by  parol  only,  for  the 
removal  of  a  disorderly  person  who  disturbs  the  business  of  the  meeting : 
Parsons  v.  Brainard,  17  Wend.  522,  1837.  Approval  by  the  mayor  of  proceed- 
ings of  the  council  may,  by  special  requirement  of  charter,  be  essential  to 
their  validity :  Graham  v.  Carondolet,  33  Mo.  262,  1862  ;  Kepner  v.  Com- 
monwealth, 40  Pa.  St.  124.  When  not :  State  v.  Jersey  City,  1  Vroom,  ,93, 
148 ;  see  Dey  o.  Jersey  City,  19  N.  J.  Eq.  412  ;  Taylor  v.  Palmer,  31  Cal.  241 ; 
State  A.  Newark,  1  Dutch.  (N.  J.)  399 :  post,  Sec.  265,  note. 

*  Cochran  v.  McCleary,  22  Iowa,  75,  1867,  and  authorities  there  cited  ; 
Reynolds  «.  Baldwin,  1  La.  An.  162,  1846;  Rex  v.  Williams,  1  Burr.  402  ; 
Willc.  456,  pi.  337  ;  Bex  v.  Hertford,  1  Ld.  Raym.  426;  approved,  Common- 
wealth, v.  Arrison,  15  Serg.  &  Kawle,  130.  Ante,  Chap.  IX.  p.  186.  In  Coch- 
ran v.  McCleary,  supra,  it  was  held  that  the  mayor,  in  cities  of  the  second 
class,  organized  under  the  General  Incorporation  Act  (Bev.  of  Iowa,  1860, 
Chap.  LI.),  is  not,  ex-officio,  a  member  of,  nor  has  he  any  right  to  preside 
over,  the  city  council ;  that  the  council  was  composed  exclusively  of  trustees 
or  aldermen,  and  elected  its  own  presiding  officer.  The  mayor  of  New 
York  is  not  a  member  of  the  common  council,  and  the  common  council, 
having  the  power  by  statute  to  appoint  to  office,  may  exercise  it  without 
the  concurrence  of  the  mayor,  who  has  no  veto  power  upon  the  appoint- 
ments :    Achley's  Case,  4  Abb.  Pr.  Rep.  35, 1856. 

3  Cochran  v.  McCleary,  22  Iowa,  75,  86, 1867 ;  Topping  «.  Gray,  7  Hill  (S, 
H.),  259 ;  affirming,  S.  C.  9  Paige,  507  ;  Markle  v.  Wright,  13  Ind.  548;  Hull- 
man  ».  Honcomp,  5  Ohio,  237 ;  People  v.  Cook,  4  Seld.  67 ;  affirming,  S.  C. 
14  Barb.  257 ;  Mayor  v.  Conner,  5  Ind.  171 ;  Mosley  o.  Alston,  1  Phill.  790 ; 
Lord  v.  The  Governor,  &c.  2  Phill.  740;  Peabody  o.  Flint,  6  Allen  (Mass,),. 
52 ;  Hagner  v.  Heyberger,  7  Watts  &  Serg.  104 ;  P  jople  v.  Carpenter,  24.  N<., 
Y.  86 ;  People  v.  Draper,  15  N.  Y.  532 ;  People  v.  Insurance  Com.pa^ty,  2L 
Johns.  Ch.  371;  People  v.  Same  Company  (qm  warranto),  15  Joh.ns.358j- 
Commonwealth  ?\  Bank  (quo  warranto),  28  Pa.  389 ;  in  chaac^y,  ib.  379 ;. 
Hughes  v.  Parker,  20  N.  H.  58;  Ex  parte  Strahl,  16  Iowa,  369, ;;  Updegraff  »., 
Crans,  47  Pa.  St.  103  ;  Facey  v.  Fuller,  13  Mich.  527.  See^  Kerr  v.  Trego,  4£ 
Pa.  St.  292,  cited  infra,  Sec  213. 
31 


242  MUNICIPAL   CORPORATIONS.  [CH.  X. 

§  211.  "Who  shall  compose  the  council  or  governing  body  of 
the  corporation  is,  in  all  cases,  prescribed  by  the  charter  or 
incorporation  act,  but  the  language  used  has  been  such  as 
sometimes  to  lead  to  controversy.1  The  organic  act  of  a  city 
provided  "that  the  intendant  of  police  shall  have  a  seat  in  the 
board  of  commissioners  [the  governing  body  of  a  city  corpora- 
tion], and  when  present,  shall  preside  therein ;  in  his  absence, 
the  board  shall  appoint  a  chairman  fro  tempore."  It  was  held 
that  the  intendant  was  thereby  constituted  one  of  the  commis- 
sioners, and  had  the  right  to  participate  in  making  ordinances.2 

§  212.  It  is  undoubtedly  true,  as  already  stated,  that  the  cor- 
porate authority  must  be  exercised  by  the  proper  body.  Thus,  where 
a  town  was  organized  under  a  charter  which  vested  the  corpo- 
rate powers  of  the  place  in  a  president  and  six  trustees,  and 

1  Cochran  v.  McCleary,  22  Iowa,  75, 1867. 

2  Raleigh  v.  Sorrell,  1  Jones  (North  Car.)  Law,  49,  1853.  In  this  case  the 
Supreme  Court  of  North  Carolina  admit  (arguendo)  that  an  officer — as,  for 
example,  the  intendant — has  no  right,  under  the  act  of  incorporation,  to  sit 
with  the  legislative  body  of  the  corporation,  but  if  he  does  so  and  acts  with 
them,  that  an  ordinance  thus  passed  will  be  void,  because  the  powers  given 
to  the  corporation  must  be  exercised  in  strict  conformity  to  the  special  del- 
egation of  authority,  .and  because,  in  the  case  supposed,  the  ordinance  is 
not  passed  by  the  body  to  which  the  power  is  given  ;  citing  Rex  v.  Croke, 
Cowp.  26.  The  yiew  of  the  court  is  in  accordance  with  the  rule  of  the 
English  courts  ,as  applied  to  their  corporations.  Thus,  Mr.  Willcock  says : 
"  It  may  be  unnecessary  to  add,  that  whenever  a  particular  business  is  del- 
egated to  a  select  body,  if  others  join  in  the  performance  of  it,  the  act  is 
void ;  as  if  the  mayor,  aldermen,,  .and  commonalty  join  in  making  a  by-law 
which  is  directed  to  be  made  by  the  mayor  and  aldermen.  For  if  others 
are  allowed  to  vote,  a  by-law  might  be  established,  although  all  those  to 
whom  the  power  is  specifically  delegated  should  be  in  the'  minority : " 
Corp.  68,  pi.  128 ;  Parry  v.  Berry,  Gomyns,  269  ;  Rex  v.  Head,  4  Burr.  2521 ; 
fitoblyn  v.  Regem,  6  Bro.  P.  C.  520;  Rex  ».  Westwood,  4  B.  &  C.  799,  818 ; 
ifirreen  p.  Durham,  1  Burr.  131.  Whether  the  mere  fact  that  a  single  un- 
auifeori,?ie<j.  person  is,  by  a  mistaken  construction  of  the  charter,  allowed  to 
participate  jyji  the  transactions  of  a  meeting  of  the  council,  would,  in  this 
pountry,  fy@  jh«114  necessarily  to  avoid  them,  is  a  question  which,  perhaps, 
,rema;ins  yet  t$  fee  ,«ettled.  It  has  been  held,  that  if  persons  who  are  not 
^■u^j§.e,d  ypte  a,t  $  &o$yn,  parish,  or  district  meeting,  without  objection  or 
(Cb.a#e]&ge  3$  ;the  time,  jpyoof  of  that  fact  cannot  afterwards  be  made  with  a 
^ew  to  invafedate  th.e  proceedings .  gutton  v.  Cole,  3  Pick.  232, 1825.  So,  if 
such  a  meeting  is  cabled  by  persons  acting  under  color  of  authority,  it  will 
be  legal  if  no  excepftom  -to  ^hei?  authority  is  taken  at  the  time :  lb. 


CH.  X.]  CONSTITUTION   AND   MEETINGS   OE   COUNCILS.  243 

subsequently  a  general  incorporation  act  was  passed  which 
was  erroneously  supposed  to  apply  to  the  town,  and  under 
which  the  town  elected  different  officers  from  those  provided 
in  the  special  charter,  at  a  different  time  and  constituting  a 
different  body,  it  was  held,  in  the  absence  of  legislative  ratifi- 
cation, that  this  latter  body  could  not  exercise  the  authority  of 
the  corporation,  since  they  were  a  body  without  any  legal  ex- 
istence, and  were  not  the  body  authorized  to  act  for  the  corpo- 
ration. The  principle  that  the  acts  of  de  facto  officers  are  valid 
was  considered  not  to  be  applicable.1 

§  213.  "Where  there  are  two  bodies,  each  of  which  claims 
to  be  the  regularly  organized  council,  and  is  acting  as  such  to 
the  detriment  of  the  public,  the  body  rightfully  entitled  to  act 
may  have  an  injunction  to  restrain  the  other  from  interference 
with  them.  To  the  argument,  that  in  relation  to  public  cor- 
porations, the  attorney  general  alone  can  file  such  a  bill,  the 
court  replied :  "  We  do  not  think  so.  It  is  right  for  those  to 
whom  public  functions  are  intrusted  to  see  that  they  are  not 
usurped  by  others."  2 

§  214.  In  this  country  the  doctrine  is  everywhere  declared, 
that  the  acts  of  de  facto  officers,  as  distinguished  from  the  acts 
of  mere  usurpers,  are  valid,  and  the  principle  extends  not  only 
to  municipal  officers  generally,  but  also  to  those  composing 
the  council,  or  legislative  or  governing  body  of  a  municipal 
corporation.3    But  in  order  that  there  may  be  a  de  facto  officer, 

1  Decorah  t>  Bullis,  25  Iowa,  12, 1868 -,  Welch  v.  Ste.  Genevieve,  1  Dillon, 
C.  C.  130, 1871.    Infra,  Sec.  214. 

*  Kerr  v.  Trego,  47  Pa.  St.  292, 1864,  per  Lowrie,  C.  J.  Mode  of  organizing 
councils  to  which  new  members  are  to  be  admitted,  and  tests,  in  case  of 
conflicting  councils,  for  determining  which  is  the  legal  organization :  lb. 
Supra,  Sec.  210  < 

3  Scoville  v.  Cleveland,  1  Ohio  St.  126,  1853 ;  Decorah  v.  Bullis,  25  Iowa, 
12,  1868;  Cochran  v.  McCIeary,  22  Iowa,  75,  84;  Ex  parte  Strahl,  16  Iowa, 
369 ;  People  v.  Stevens,  5  Hill,  616 ;  State  v.  Jacobs,  17  Ohio,  143 ;  People  *. 
Bartlett,  6  Wend.  422;  Pritchard  v.  People,  1  Gilm.  (111.)  529;  People  v. 
Runkle,  9  Johns.  147 ;  Trustees,  &c.  v.  Hill,  6  Cow.  23 ;  Williams  v.  School 
District,  21  Pick.  75  ;  see  Bex  v.  Mayor,  &c.  9  Mod.  Ill ;  De  Grave  ».  Mon- 
mouth, 4  Car.  &  P.  411.  In  a  case  in  the  House  of  Lords,  decided  in  1851, 
it  was  held,  that  an  act  done  by  a  definite  body,  under  authority  of  parlia- 
ment, was  not  invalid  because  officers  de  facto  joined  with  officers  dejure  in 


244  MUNICIPAL   CORPORATIONS.  CH.  X.] 

there  must  be  a  dejure  office ;  and  the  notion  that  there  can 
be  a  de  facto  office  has  been  characterized  as  a  political  sole- 
cism, without  foundation  in  reason  and  without  support  in 
law;  and,  therefore,  a  person  cannot  claim  to  be  a  de  facto  offi- 
cer of  a  municipal  corporation  when  the  corporation  or  people 
have,  in  law,  no  power,  in  any  event,  to  elect  or  appoint  such 
an  officer.1 

§  215*  The  common  law  principle,  that  if  an  act  is  to  be 
done  by  an  indefinite  body  it  is  valid,  if  passed  by  a  majority  of 
those  present  at  a  legal  meeting,  no  matter  how  small  a  por- 
tion they  may  constitute  of  the  whole  number  entitled  to  be 
present,  has  been  deemed  applicable  to  the  towns  of  New 
England.  In  those  towns  the  corporate  power  resides,  as 
we  have  seen,  in  the  inhabitants,  or  citizens  at  large,  and 
these  form  the  constituent  body.  If  the  meeting  has  been  duly 
called  and  warned,  those  who  assemble,  though  less  than  a  ma- 
jority of  the  whole,  have  the  power  to  act  for  and  bind  the  whole, 
unless  it  is  otherwise  provided  by  law.  Those  who  remain 
away  are  justly  and  conclusively  presumed  to  assent  to  what 
may  lawfully  be  done  by  those  who  attend.2 

the  doing  of  it.  The  judges  having  unanimously  declared  this  to  be  their 
opinion,  the  Lord  Chancellor  said  :  "  The  opinion  of  the  judges  as  to  ves- 
trymen de  facto  and  dejure  was  of  great  importance.  When  it  was  consid- 
ered that  there  were  many  persons  who  were  charged  with  very  important 
duties,  and  whose  title  to  perform  those  duties  or  to  exercise  the  powers 
necessary  for  their  performance,  the  public  could  not  easily  ascertain  at 
'the  time,  and  when  it  was  remembered  what  inconveniences  would  arise 
the  validity  of  their  acts  depended,  on  the  propriety  of  the  election  of  the 
persons  who  had  to  perform  them,  the  value  of  the  clear  enunciation  of 
the  principle  thus  made  by  the  judges  was  very  great,  and  in  the  correct- 
ness of  it  he  begged  to  declare  his  entire  concurrence : "  Scadding  v.  Lorant, 
5  Eng.  Law  &  Eq.  16,  30,  per  Lord  Chancellor  Thuro. 

1  Decorah  i>.  Bullis,  25  Iowa,  12,  18,  1868 ;  Hildreth's  Heirs  *.  Mclntire's 
Devisees,  1  J.  J.  Marsh.  (Ky.)  206;  People  v.  White,  24  Wend.  520,  540,541; 
Carleton  v.  People,  10  Mich.  250;  Welch  v.  Ste.  Genevieve,  1  Dillon,  C.  C. 
130, 1871 ;  supra,  Sec.  212. 

2  Damon  v.  Granby,  2  Pick.  345,  355,  1824 ;  Commonwealth  v.  Ipswich,  2 
Pick.  70;  Williams  v.  Lunenburg,  21  Pick.  75 ;  Church  Case,  5  Robert.  (N.Y.), 
649, 1867 ;  First  Parish  v.  Stearns,  21  Pick.  148, 1838  ;  State  «.  Binder,  38  Mo. 
450,  1866. 

At  a  popular  election,  a  candidate  for  a  municipal  office  received  a  plural- 
ity of  all  the  votes  cast,  but  not  a  majority.    There  was  no  provision  of  the 


OH.  X.]  CONSTITUTION   AND    MEETINGS    OF   COUNCILS.  245 

§  216.  The  common  law  rules  as  to  quorums  and  majorities, 
established  with  reference  to  corporate  bodies,  consisting  of  a 
definite  number  of  corporators,  have  also,  in  general,  been  ap- 
plied to  the  common  council,  or  select  governing  body  of  our 
municipal  corporations,  where  the  matter  is  not  specially  reg- 
ulated by  the  charter  or  statute.  Thus,  to  use  Mr.  Dane's 
illustration,  if  the  body  consists  of  twelve  common  council- 
men,  seven  is  the  least  number  that  can  constitute  a  valid 
meeting,  though  four  of  the  seven  may  act.1  Accordingly,  a 
statute  in  reference  to  a  definite  body,  declaring  that  a  "  ma- 
jority of  those  present  at  any  regular  meeting  shall  be  competent " 
to  transact  business,  leaves  the  number  which  may  form  a 
quorum  to  be  determined  by  the  common  law — that  is,  there 
must  be  at  least  a  majority  present,  and  such  a  provision,  it 
was  considered,  did  not  authorize  a  minority  of  the  whole  body  to 
act.2 

§  217.  So,  if  a  board  of  village  trustees  consists  of  five  mem- 
bers, and  all,  or  four,  are  present,  two  can  do  no  valid  act,  even 
though  the  others  are  disqualified,  by  interest,  from  voting, 
and  therefore  omit  or  decline  to  vote ;  their  assenting  to  the 
measure  voted  for  by  the  two  will  not  make  it  valid.  If  three 
only  were  present  they  would  constitute  a  quorum,  then  the 

charter  nor  any  by-law  on  the  subject.  The  usage  in  the  corporation 
seemed  to  have  been  to  consider  the  person  having  the  highest  number  of 
votes,  although  not  a  majority  of  the  whole,  as  duly  elected.  The  statute 
in  relation  to  state  elections  expressly  provided  that  "plurality,  or  the 
highest  number  of  votes,  should  make  a  choice."  Under  these  circum- 
stances, the  majority  of  the  court  were  of  opinion  that  the  common  law 
rule,  that  a  majority  is  necessary  to  a  valid  election  applied,  and  was  not 
controlled  by  the  terms  or  spirit  of  the  general  election  law  of  the  state : 
State  v.  Wilmington,  3  Harring.  (Del.)  294,  1840.  Harrington,  J.,  dissented, 
holding  (and,  as  it  would  seem,  with  reason)  that  the  plurality  principle 
had  been  the  one  "invariably  adopted  as  most  in  consonance  with  our 
institutions  in  all  cases  where  the  law  of  election  is  silent  in  this  respect : " 
lb.  p.  305.  See  First  Parish  v.  Stearns,  21  Pick.  148.  As  to  municipal  elec- 
tions :  Ante,  Chap.  IX. 

1  5  Dane  Abr.  150;  Ex  parte  Willcocks,  7  Cow  402,  410,  1827,  note  d,  and 
criticism  on  the  rule  stated  in  1  Kyd  on  Corp.  418,  425 ;  2  Kent  Com.  293 
Buell  v.  Buckingham,  16  Iowa,  284,  1864 ;  Regents,  Ac.  v.  Williams,  9  Gill  & 
Johns.  (Md.)  365;  Mills  v.  Gleason,  11  Wis.  470. 

2  Ex  parte  Willcocks,  7  Cow.  402,  1827;  lb.  463,  and  note ;  lb.  526,  and 
note. 


246  MUNICIPAL    CORPORATIONS.  CH.  X.] 

votes  of  two,  being  a  majority  of  the  quorum,  would  be  valid; ' 
certainly  so  wbere  the  three  are  all  competent  to  act.2 

§  218.  In  another  case,  the  power  of  amotion  was  conferred 
upon  a  city  council  to  be  exercised  u  by  a  vote  of  two-thirds  of 
that  body,"  and  this  was  considered  to  give  the  power  of  re- 
moval to  two-thirds  of  a  legal  quorum.  Two-thirds  of  the 
whole  number  of  members  composing  the  council  were  held 
not  to  be  required.  The  point  was  admitted  to  be  close,  and 
the  French  text  of  the  charter  was  relied  on  as  favoring  the 
conclusion  reached.3 

§  219.  In  a  case  which  arose  in  California,  the  charter  of 
the  city  contained  a  provision  that  no  ordinance  should  be 
passed  by  the  common  council,  except  by  a  majority  of  all 
the  members  elected.  Eight  were  elected,  and  it  was  decided, 
under  the  abovementioned  requirement  of  the  charter^  that 
an  ordinance  could  not  be  passed  by  a  vote  of  four  against 
three,  since  four  did  not  constitute  a  majority  of  all  the  mem- 
bers elected,  although  it  did  constitute  a  majority  of  a  legal 
quorum.4 

§  220.  In  the  absence  of  special  provision,  the  major  part  of 
those  present,  at  a  meeting  of  a  select  body,  must  concur  in  order 
to  do  any  valid  act.  Therefore,  when  it  appeared  that  thir- 
teen ballots  were  cast  when  the  members  present  were  only 
entitled  to  give  twelve  votes,  of  which  seven  were  for  one  per 
son  and  six  for  another,  there  is  no  election,  and  the  council, 
though  it  has  declared  that  the  person  receiving  seven  votes 
was  duly  elected,  may  subsequently  rescind  its  action  and  pro- 
ceed to  a  new  election.6  And  in  South  Carolina  the  general 
rule  is  recognized,  and  a  majority  of  the  board  of  managers  of 

1  Coles  v.  Williamsburg,  10  Wend.  658,  1833. 

2  Buell  v.  Buckingham,  16  Iowa,  284, 1864,  and  cases  cited. 

3  Warnock  v.  Lafayette,  4  La.  An.  419,  1849.  See,  on  this  point,  Logans- 
port  v.  Legg,  20  Ind.  315. 

*  San  Francisco  v.  Hazen,  5  Cal.  169, 1855.  See,  also,  Oakland  v.  Carpen- 
tier,  13  Cal.  540 ;  McCracken  «.  San  Francisco,  16  Cal.  591 ;  Piemental  v. 
San  Francisco,  21  Cal.  351. 

5  Labourdette  v.  Municipality,  2  La_  An.  527, 1847. 


CH.  X.J  CONSTITUTION  AND  MEETINGS   OF  COUNCILS.  247 

elections — having  power,  by  statute,  to  determine  the  validity 
of  contested  elections  —  is  a  quorum,  and  a  majority  of  that 
quorum  may  act  and  decide.1 

§  221.  And,  as  a  general  rule,  it  may  be  stated,  tbat  not  only 
where  the  corporate  power  resides  in  a  select  body,  as  a  city 
council,  but  where  it  has  been  delegated  to  a  committee  or  to 
agents,  then,  in  the  absence  of  special  provisions  otherwise,  a 
minority  of  tbe  select  body,  or  of  the  committee  or  agents,  are 
powerless  to  bind  the  majority  or  do  any  valid  act.  Kail  the 
members  of  the  select  body  or  committee,  or  if  all  of  the 
agents  are  assembled,  or  if  all  have  been  duly  notified,  and  the 
minority  refuse  or  neglect  to  meet  with  the  others,  a  majority 
of  those  present  may  act,  provided  those  present  constitute  a 
majority  of  the  whole  number.  In  other  words,  in  such  case, 
a  major  part  of  the  whole  is  necessary  to  constitute  a  quorum, 
and  a  majority  of  the  quorum  may  act.  If  the  major  part 
withdraw  so  as  to  leave  no  quorum,  the  power  of  the  minority 
to  act  is,  in  general,  considered  to  cease.2  But  where  the 
duties  are  purely  ministerial,  and  not  judicial,  or  are  of  such  a 
nature  as  to  exclude  the  idea  of  action  as  a  body  or  board,  and 
where  they  are  devolved  on  public  officers  or  agents  rather  than 
on  the  agents  of  corporations,  the  rule  above  stated  (as  the 
cases  below  referred  to  will  show)  has  been  relaxed,  and,  in 
some  instances,  deemed  wholly  inapplicable.3 

1  State  v.  Deliesseline,  1  McCord  (South  Car.),  52,  1821,  where  the  subject 
is  elaborately  considered  by  Noti,  J. ;  S.  P.  State  v.  Huggins,  Harper  (South 
Car.),  Law,  94,  1824,  further  holding  that  where,  of  eighteen  managers  ap- 
pointed by  the  legislature,  two  refused  to  qualify,  one  was  disqualified,  and 
one  dead,  the  remaining  fourteen  (from  necessity  and  public  convenience) 
properly  constituted  the  board,  and  might  act  by  a  majority  of  the  four- 
teen. The  decision  rests  upon  the  legislative  intent,  deduced  from  various 
provisions  of  the  act,  to  commit  the  matter  to  the  acting  managers. 

2  Kingsbury  v.  School  District,  12  Met.  99,  1846 ;  Day  v.  Green,  4  Cush. 
438,  439, 1849 ;  Fisher  v.  School  District,  4  Cush.  494, 1849  ;  Coffin  v.  Nan- 
tucket, 5  Cush.  269,  1850  ;  11  Cush.  433;  Damon  v.  Granby,  2  Pick.  345,  355, 
1824 ;  State  v.  Jersey  City,  3  Dutch.  (N.  J.)  493 ;  Charles?;.  Hoboken,  ib.  203; 
Dey  v.  Jersey  City,  19  N.  J.  Eq.  412,  1869 ;  Baltimore  v.  Poultney,  25  Md.  18, 
1866. 

*  With  respect  to  persons  or  officers  appointed  by  law  to  act  judicially  in 
a  public  matter,  it  is  generally  held,  there  being  no  provision  of  statute  to 
the  contrary,  that  where  all  meet  and  act,  a  majority  may  decide  and  bind 


248  MUNICIPAL   CORPORATIONS.  [CH.  X. 

§  222.  The  doctrine  of  the  English  courts  is,  that  all  of  the 
integral  parts  of  a  corporation  necessary  to  do  an  act  must  not 
only  meet,  but  remain  present  till  the  act  is  completed;  and 

the  rest,  and  this  notwithstanding  the  express  dissent  of  the  minority,  or 
their  •wrongful  withdrawal  before  the  act  is  consummated :  Ex  parte  Rogers, 
7  Cow.  526,  1827  (appraisal  of  damages  by  canal  appraisers),  and  see  ib.  note 
a,  and  the  cases  there  cited  and  reviewed ;  Ib.  764,  explanation.  See,  fur- 
ther, Ex  parte  Willcocks,  7  Cow.  402,  .and  note ;  Ib.  462,  463 ;  Young  v.  Buck- 
ingham, 5  Ohio,  485,  489,  1832 ;  Charles  v.  Hoboken,  3  Dutch.  (N.  J.)  203 ; 
Martin  «.  Lemon,  26  Conn.  192,  1857. 

The  statute  authorized  the  appointment  of  three  levee  inspectors,  and 
prescribed  their  duties,  which  involved  the  exercise  of  judgment.  Held, 
that  all  must  meet  and  act,  and  that  the  action  of  a  majority  in  the 
absence  of  the  third  was  void :  Ballard  v.  Davis,  31  Miss.  525, 1856. 

Where  a  majority  of  a  committee  is  authorized  to  act,  they  constitute  a 
party  capable  of  contracting,  and  another  member  of  a  committee,  not 
acting  as  such,  but  as  an  individual,  constitutes  another  party  capable  of 
being  contracted  with.  It  is  accordingly  held,  that  a  majority  of  such  a 
committee  may  contract  with  or  employ  one  of  their  own  number,  and  such 
contract,  if  fairly  made  and  without  fraud  or  corruption,  will  be  binding 
upon  the  corporation :  Junkins  v.  Union  School  District,  39  Maine,  220 ; 
Buell  t>.  Buckingham,  16  Iowa,  284 ;  Willard  v.  Newburyport,  12  Pick.  227. 
But  a  contract  made  by  less  than  a  majority  of  a  committee  of  the  corpora- 
tion, though  in  the  name  of  the  whole,  binds  neither  party.  But  it  will  be 
binding  if  the  authority  was  joint  and  several,  or  if  ratified :  Adams  ».  Hill, 
16  Maine  (4  Shep.),  215,  1839 ;  Kupfer  v.  South  Parish,.  &c.  12  Mass.  185, 
1815 ;  Allen  v.  Cooper,  22  Maine,  133,  1842.  In  Damon  v.  Granby,  2  Pick. 
345, 1842,  this  distinction  is  taken :  If  a  public  corporation  appoints  a  com- 
mittee of  its  own  members,  a  majority  may  bind,  for  such  is  the  usage  and 
the  common  law  in  relation  to  corporations.  But  if  the  authority  is  given 
to  persons  not  members  of  the  body,  such  persons  are  agents,  and  not 
technically  a  committee,  and  all  must  concur,  unless  it  appear  that  it  was 
intended  that  a  majority  should  act :  See  authorities  cited  by  Solicitor 
General  Davis  in  same  case,  p.  350 ;  Viner's  Ab.  Title,  Authority  B.  pi.  7. 
Further  as  to  binding  force  of  the  act  of  majority  of  a  committee  or  board 
of  selectmen,  see  Jones  v.  Andover,  9  Pick.  146 ;  Crommett  ».  Pearson,  18 
Maine  (6  Shep.),  34*.  1841 ;  Junkins  v.  School  District,  39  Maine,  220, 1855  ; 
Inhabitants,  &c.  v.  Cole,  3.  Pick.  232,  244;  Kingsbury  ,v.  School  District,  12 
Met.  99,  1846  ;  Keyes  v.  Westford,  17  Pick.  273,  1835 ;  Green  v.  Miller,  6 
Johns..  39,  1810;  Grindley  v.  Barker,  1  Bos.  &  Pul.  236,  per  Eyre,  C.  J. ;  King 
v.  Boston,  3  Term  B.  592 ;  Guthrie  ».  Armstrong,  5  Barn.  &  Aid.  628,  1822, 
where  it  was  held,  that  a  power  given  to  fifteen  jointly  and  severally  was 
well  executed  by-  four.  A  school  committee  appointed  according  to  and 
under  a  statute  are  public  officers  lyithiii  the  meaning  of  the  statute  which 
gives,  a  majority  of  such  officers  authority  to  act  for  the  whole :  Keyser  v. 
School  District,  35  N,  H.  477, 1857.  Where  an,  authority  is  given,  by  law, 
to  a  committee,  or  to  more  persons  than  one,  to  do  an  act  of  a  public  nature, 


CH.  X.J  CONSTITUTION   AND    MEETINGS   OF   COUNCILS.  249 

therefore  if  one  of  such  parts  deserts  or  withdraws,  thougli 
wrongfully,  and  to  defeat  any  action,  before  the  act  is  con- 
one  alone,  unless  there  be  something  to  show  such  intention,  cannot  act 
independently  and  without  the  concurrence  of  the  others,  or  at  least  of  a 
majority.  If  the  act  is  ministerial,  a  majority  at  least  must  concur;  but 
unless  required,  or  such  is  the  practice,  they  need  not  act  as  a  board,  and 
be  convened  or  notified  to  be  convened  as  such.  But  if  the  act  is  judicial 
in  its  nature,  that  is,  requiring  the  exercise  of  judgment,  unless  special  pro- 
vision is  otherwise  made,  all  must  meet  or  have  notice  to  meet,  a  majority 
will  constitute  a  quorum,  and  a  majority  of  the  quorum  will  be  competent 
to  act :  Martin  v.  Lemon,  26  Conn.  192,  1857.  In  this  case  it  was  ruled,  that 
one  of  a  committee  of  three  to  remove  encroachments  on  highways  could 
act  alone  Committees  of  public  corporations  have  sometimes  been  held  to 
be  governed,  with  respect  to  meeting  and  notice;  by  different  rules  from  a 
board  which  has  necessarily  to  be  assembled  or  convened  before  it  can  act. 
And  the  acts  of  a  majority  of  such  committees  have  been  considered  valid, 
though  some  member  of  the  committee  was  not  notified :  Gallup  v.  Tracy 
(town  committee  to  stake  out  oyster  grounds),  25  Conn.  10,  1856.  But 
compare,  Martin  v.  Lemon,  26  Conn.  192,  And  see  Damon  v.  Granby,  2 
Pick.  (Mass.)  345,  354;  Grind  ley  v.  Barker,  1  Bos.  &  Pul.  229;  Keeler  v. 
Frost,  22  Barb.  400 ;  Perry  v.  Tyner,  ib.  137.  Where  a  public  authority  is  to 
be  exercised  by  two  officers  —  a  number  not  admitting  of  a  majority  — reg- 
ularly, both  should  act ;  yet,  to  prevent  a  failure  of  justice,  it  seems  one 
may,  in  certain  cases,  as  where  the  other  is  dead,  disqualified,  or  absent, 
act  alone.  But  certain  it  is,  that  where  one  only  acts,  the  consent  of  the  other 
vAll  be  presumed.  This  is  an  application  of  the  strong  presumption  which 
obtains  in  favor  of  the  performance  of  official  duty :  Downing  v.  Kugar,  21 
Wend.  178,  1839,  and  authorities  cited.  This  case  also  holds,  that  the  pre- 
sumption of  consent  could  be  rebutted  only  by  the  testimony  of  the  other 
officer :  Ib.  185.  "  It  is  a  general  principle,  that  where  a  board  of  officers 
(for  example,  overseers  of  the  poor)  is  constituted  to  perform  a  duty  pro- 
vided by  law,  the  act  of  the  majority  is  the  act  of  the  whole  body :  "  Per 
Bennett,  J.,  Wolcott  v.  Wolcott,  19  Vt.  37,  39,  1846.  See,  also,  King  s.  Bee- 
sten,  3  Term  R.  592 ;  Jones  e.  Aridover,  9  Pick.  146. 

Under  the  statutes  of  Pennsylvania,  all  powers  conferred  upon  county 
commissioners  may  he  legally  executed  by  two  without  the  concurrence  of 
the  third:  Commissioners  v.  Leckey,  6  Serg.  &  Rawle,  166;  Cooper  v. 
Beansbey,  8  Watts,  128 ;  Curtis  v.  Butler  Co.  24  How.  (U.  S.)  435. 

Where  three  commissioners  are  appointed  to  contract  for  site  for  poor 
house,  two  of  them  cannot  make  a  valid  purchase :  Pulaski  Co.  v.  Lincoln, 
4  Eng.  (Ark.)  320,  1849. .  Action  of  less  than  a  majority  of  commissioners  of 
public  buildings,  appointed  by  act  of  legislature,  is  void :  Petrie  v.  Doe, 
30  Miss.  698, 1856.  A  statute  declaring  that  every  board  of  township  trus- 
tees, "  and  the  members  thereof,"  shall  be  overseers  of  the  poor,  was  con- 
strued to  make  each  member  an  overseer,  with  power  to  act :  County  Com- 
missioners v.  Jones,  7  Ind.  3,  5, 1855.  When  majority  may  lawfully  execute 
powers  of  a  public  nature :  Commissioners  v.  Lecky,  6  Serg.  &  Rawle  (Pa.), 

32 


250  MUNICIPAL   CORPORATIONS  [CH.  X. 

summated,  the  act  is  not  valid.1  The  liability  of  this  rule  to 
abuse,  since  it  enables  one  of  the  parts  of  a  joint  meeting  or 
assembly  to  defeat  any  action  whatever,  has  led  the  courts  in 
this  country  to  deny  its  applicability  here,  or  to  apply  it  with 
caution.2 

170 ;  Baltimore  v.  Turnpike,  5  Binn.  484 ;  McCready  v.  Guardians,;  9  Serg.  & 
Rawle,  99 ;  Commonwealth  v.  Commissioners,  9  "Watts,  466,  471 ;  Cooper  v. 
Lampeter,  8  Watts,  128 ;  Caldwell  v.  Harrison,  11  Aty  755 ;  Commissioners 
v.  Tarver,  21  ib.  661 ;  Crist ».  Town  Trustees,  10  Ind.  452 ;  Schenck  v.  Peay, 
1  Dillon,  C.  C.  B  267. 

1  King  v.  Williams,  2  Maule  &  Sel.  141 ;  following  King  v.  Butler,  8  East, 
388 ;  questioning  King  n.  Norris,  1  Barnard.  K.  B.  385 ;  cited  and  reviewed, 
7  Cow.  526,  note;  King  v.  Miller,  6  Term  R.  278;  2  Kent's  Com.  292.  Mr. 
Willcock  vindicates  the  rule,  but  on  grounds  not  very  satisfactory.  Corp. 
53,  54.    Supra,  Sec.  209. 

2  Ex  parte  Humphreys,  10  Wend.  612,  1834;  People  v.  Batchelor,  22  N.  Y. 
128, 146, per  Denio,  J.;  First  Parish  v.  Stearns,  21  Pick.  148, 1838;  Coles  Co. 
v.  Allison,  23  111.  437. 

The  common  law  rule,  that  to  the  due  constitution  of  a  corporate  assembly  a 
majority,  at  least,  of  each  integral  or  component  part  or  body,  must  neces- 
sarily be  present,  was  departed  from  by  the  Supreme  Court  of  New  Hamp- 
shire in  the  case  of  Beck  v.  Hanscom.  By  the  charter,  the  city  government 
of  Portsmouth  was  vested  in  a  mayor,  "one  council  of  seven,  to  be  denom- 
inated the  board  of  aldermen,  and  one  council  of  twenty-one,  to  be  denom- 
inated the  common  council,  which  boards  shall,  in  their  joint  capacity,  be 
denominated  the  city  council."  It  was  further  provided  by  the  charter, 
that  a  "  majority  of  each  board  should  constitute  a  quorum;"  that  the  two 
bodies  should  sit  and  act  separately,  except  ''when  the  two  are  required  to 
meet  in  convention;"  that  at  the  meeting  of  the  "city  council  in  conven- 
tion, if  it  shall  appear  that  a  majority  of  either  of  said  bodies  is  not  pres- 
ent," the  members  may  compel  the  attendance  of  the  absentees,  &c.  The 
board  of  aldermen  and  the  common  council  separately  voted  to  meet  in 
convention  on  the  12th  of  June,  for  the  choice  of  city  officers;  but  when 
the  time  arrived,  only  a  minority  (three  out  of  seven)  of  the  board  of  alder- 
men appeared.  The  common  council  and  these  aldermen,  twenty-three  in 
all,  being  a  majority  of  both  boards,  proceeded  to  elect  city  officers;  and  it 
was  held,  1st,  that  the  election  was  valid ;  and  2d,  that  a  majority  of  the 
twenty-three  present  could  elect.  In  reference  to  this  decision  it  may  be 
observed,  that  the  court  take  no  notice  of  the  power  of  compelling  the  at- 
tenance  of  the  absentees,  and  that  this  provision  seemed  to  contemplate 
the  presence  of  a  majority  of  each  of  the  constituent  bodies.  The  court 
cite  and  approve  Whitside  v.  People,  26  Wend.  634,  and  Ex  parte  Hum- 
phreys, 10  Wend.  612;  in  both  of  which,  however,  the  constituent  bodies, 
so  to  call  them,  duly  met  but  refused  to  act.  It  is  substantially  admitted 
by  the  court,  that  the  decision  they  make  is  not  in  conformity  with  the 
English  rule,  but  they  consider  it  to  be  the  one  "  which  will  best  enable 
the  government  qf  the  city  to  proceed  with  regularity;"  and  that  "after 


[CH.  X.  CONSTITUTION   AND   MEETINGS    OF   COUNCILS.  251 

§  223.  The  usual  division  of  the  meetings  of  corporate  bodies 
is  into  (1)  stated  or  regular,  and  (2)  special  meetings ;  and  meet- 
ings of  either  class  possess  an  incidental  power  of  adjournment, 
from  whence  we  have  another  class  known  as  adjourned  meet- 
ings. The  time  of  holding  regular  or  stated  meetings  is  fixed 
by  the  charter,  or  by  ordinance  or  by-law,  passed  in  pursu- 
ance tlfereof,  and,  in  either  case,  the  time  thus  appointed  is 
presumed  to  be  known  to  the  members  of  the  body;  and  un- 
less the  charter  or  by-law  otherwise  provides,  it  is  their  duty 
to  attend  such  meetings  without  further  or  special  notice. 
Absent  members,  equally  with  those  who  are  present,  are 
bound  by  whatever  is  lawfully  done  at  a  regular  or  stated 
meeting,  or  any  regular  and  valid  adjourned  meeting.1 

§  224.  If  the  meeting  be  a  special  one,  the  general  rule  is, 
unless  modified  by  the  charter  or  statute,  that  notice  is  neces- 
sary, and  must  be  personally  served,  if  practicable,  upon  every 
member  entitled  to  be  present,  so  that  each  one  may  be  af- 
forded an  opportunity  to  participate  and  vote.2    By  the  char- 

every  preliminary  step  has  been  properly  taken,  the  mere  neglect  of  one 
of  the  constituent  bodies  to  carry  its  previous  vote  into  effect  ought  not  to 
hinder  the  other  bodies  from  performing  the  duties  required  by  the  char- 
ter." Per  Gilchrist,  C.  J.,  in  Beck  v.  Hanscom,  supra,  9  Fost.  213,  226.  In 
Kimball  v.  Marshall,  44  N.  H.  465,  1863,  Bell  v.  Hanscom,  supra,  is  ap- 
proved, and  its  doctrine  applied  to  a  different  state  of  facts. 

Effect  of  refusal  of  one  of  two  distinct  bodies  to  go  into  a  joint  meeting,  or, 
after  being  assembled  in  joint  meeting,  to  participate  in  "the  joint  ballot" 
by  which  officers  (by  statute)  are  to  be  removed  or  appointed,  see,  in  Court 
of  Errors,  Whitside  v.  The  People,  26  Wend.  634,  1841 :  reversing  decision 
of  Supreme  Court  in  same  case,  23  Wend.  9.  See  act  of  congress  of  July 
25,  1866  (14  Statutes  at  Large,  243),  regulating  the  election  of  United  States 
senators  by  the  legislatures  of  the.  several  states  in  joint  assembly,  contain- 
ing provisions  (the  necessity  for  which  has  been  shown  by  experience)  to 
prevent  one  of  the  bodies  from  defeating  action. 

1  People  v.  Batchelor,  22  N.  Y.  128,  1860;  Smith  v.  Law,  21  N.  Y.  296; 
Hudson  Co.  v.  State  (presumption  of  regularity),  4  Zabr.  718;  Insurance  Co. 
v.  Sanders,  36  N.  H.  252.  See  and  compare,  State  v.  Jersey  City,  1  Dutch. 
(N.  J.)  309. 

2  People  v.  Batchelor,  22  N.  Y.  128,  134,  per  Selden,  J. ;  ib.  146,  per  Denio, 
J.;  Ex  parte  Eogers,  7  Cow.  526,  and  cases  cited  in  valuable  note;  Downing 
v.  Bugar,  2i  Wend.  178;  Burgess  v.  Pue,  2  Gill  (Md.),  254;  Stow  v.  Wise,  7 
Conn.  214;  Smith  v.  Darley,  2  House  Lords'  Cases,  789, 1849. 

At  a  stated  meeting  of  a  select  body  at  which  all  the  members  are  not 
present,  it  is  not  competent,  in  the  opinion  of  the  Court  of  Appeals  of  New 


252  MUNICIPAL   CORPORATIONS.  [CH.  X. 

ter  of  a  city,  the  power  of  imposing  taxes  belonged  to  the 
inhabitants  assembled  in  animal  town  meeting.  It  was  pro- 
vided, that  if,  at  this  meeting,  no  tax  was  voted,  or  an  insuffi- 
cient tax,  the  common  council  "should  call  a  meeting  of  the 
inhabitants,  by  advertisement  or  otherwise,"  for  the  purpose 
of  having  them  vote  a  tax.  The  court  seemed  to  be  of 
opinion,  that  the  common  council  were  obliged  to  speaify  the 
■  objects  of  the  call  in  their  notice,  it  being  a  special  meeting; 
and  it  decided,  that  if  it  did  specify  a  particular  purpos?,  that 
any  act  of  the  meeting,  "wholly  beside  the  special  purpose  of 
the  mectino;  as  stated,''  was  void.1 

§  225.  A  regular  meeting,  unless  special  provision  is  made 
to  the  contrary,  may  a/fjo'irn  to  a  future  fixed  day;  and  at 
such  meeting  it  will  be  lawful  to  transact  any  business  which 
might  have  been  transacted  at  the  stated  meeting,  of  which  it 
is,  indeed,  but  the  continuation.  Unless  such  be  the  special 
requirement  of  the  charter  or  a  by-law,  the  adjourned  regular 
meeting  would  nut,  it  is  supposed,  be  limited  to  completing 
particular  items  of  business  which  had  been  actually  entered 
upon  and  left  unfinished  at  the  first  meeting;  but  might,  if 
the  adjournment  was  general,  do  any  act  which  might  have 
been  done  had  no  adjournment  taken  place.3  Where  the 
meeting,  if  a  regular  one,  can  only  act  upon  a  specific  matter, 
or,  if  a  special  one,  can  only  act  upon  matters  of  which  notice 
has  been  given  to  the  members,  while  it  is  competent,  in 

York,  in  the  absence  of  a  statute  or  by-law  to  that  effect,  to  appoint  a 
future  new  or  special  meeting  to  determine  independent  matters  not  taken 
up,  and  which  could  not  legally  have  been  taken  up,  at  the  stated  meeting, 
and  to  act  at  such  future  time,  unless  all  have  actual  notice.  If  any  one 
thus  entitled  to  notice  does  not  receive  it,  and  is  not  present,  the  action  is 
void.  People  v.  Batchelor.  22  N.  Y.  128,  1860;  to  be  read  in  connection 
with  Smith  v.  Law,  21  N.  Y.  296. 

1  Bergen  v.  Clarkson,  1  Halst.  (N.  J.)  352, 1796.  See,  also,  Rex  v.  Liver- 
pool, 2  Burr.  735;  Rex  v.  Doncaster,  ib.  735;  King  t.  Mayor,  &c.  1  Str.  385; 
Machell  v.  Nevinson,  2  Ld.  Raym.  1355 ;  2  Bac.  Abr.  18. 

2  Smith  v.  Law,  21  N.  Y.  296;  Warner  v.  Mower,  11  Vt.  385;  People  v. 
Batchelor,  22  N.  Y.  128;  Rawlinson  on  Corp.  (5th  ed.)  136,  note;  Scadding 
v.  Lorant,  5  Eng.  Law  and  Equity,  16,  1851 ;  People  v.  Martin,  1  Seld.  (N. 
Y.)  22;  Street  Case,  1  La.  An.  412;  Hudson  Co:  v.  State,  4  Zabr.  718. 


CH.  X.]  MODE   OF   PROCEEDING   WHEN    CONVENED.  253 

either  case,  to  adjourn,  the  adjourned  meeting  is,  in  both 
cases,  limited,  equally  with  the  first  meeting,  to  the  specified 
matters.1 

Mode  of  Proceeding  when  Convened. 

§  226.  After  a  meeting  of  the  council  is  duly  convened, 
the  mode  of  proceeding  is  regulated  by  the  charter  or  constitu- 
ent act,  by  ordinances  passed  for  that  purpose,  and  by  the 
general  rules,  so  far  as  in  their  nature  applicable,  whi.  u  gov- 
ern other  deliberative  and  legislative  bodies.  If  the  council 
consists  of  two  boards,  the  concurrence  of  both  is  essential  to 
valid  legislation,  and  this  concurrence  must  be  by  simultane- 
ously existing  bodies.2  The  rule  of  legislative  bodies  consist- 
ing of  two  branches,  that  unfinished  business  at  the  end  of  a 
session  is  discontinued,  and  must  be  afterwards  taken  up 
anew,  if  at  all,  was  considered  applicable  to  the  legislative 

1  Scadding  r.  Lorant,  5  Eng.  Law  and  Equity,  16;  S.  C.  17  Law  T.  225, 
H.  Of  L.  1851.  In  this  case,  the  statute  (a  local  act)  required  notice  to  be 
given  of  a  meeting  of  vestrymen  to  be  held  for  the  purpose  of  making  a 
rate  for  the  relief  of  the  poor.  Such  notice  was  given,  specifying  the  pur- 
pose of  the  meeting ;  the  meeting  was  held  accordingly,  on  the  12th  of 
August,  when  it  was  resolved  that  a  rate  should  be  made ;  but  as  the  de- 
tails could  not  be  completed,  the  meeting  was  adjourned,  and  at  an  ad- 
journed meeting  the  matter  of  the  rate  was  completed;  but  the  notice  for 
the  adjourned  meeting  contained  no  mention  of  the  purpose  for  which  the 
meeting  assembled.  And  the  question  which  the  House  of  Lords  put  to 
the  judges,  in  reference  to  the  adjourned  meeting,  was:  "Supposing  the 
rate  to  be  otherwise  valid,  was  it  inyalid  by  reason  of  the  notice  not 
stating  the  purpose  for  which  the  [adjourned]  meeting  assembled?"  The 
judges  answered :  "  We  are  unanimously  of  opinion,  that  the  rate  was  not 
rendered  invalid  by  reason  of  the  alleged  defect  in  the  notice  of  the  ad- 
journed meeting.  It  was  sufficient  to  give  notice  [as  required  by  the  act] 
on  the  church  door  of  the  purpose  for  which  the  first  meeting  was  to  be 
held,  and,  that  notice  having  been  duly  given,  we  think  that  the  notice  so 
given  extended  to  all  the  adjourned  meetings,  such  adjourned  meetings 
being  held  for  the  purpose  of  completing  the  unfinished  business  of  the 
first  meeting,  and  being  in  continuation  of  that  meeting.''  And  such  was 
the  judgment  of  the  House  of  Lords.  See,  also,  King  v.  Harris,  1  Barn.  & 
Ad.  936. 

Presumption  as  to  regularity  of  adjournment  when  proceedings  of  the 
adjourned  meeting  come  before  the  court:  Hudson  Co.  v.  State,  4  Zabr. 
(N.  J.)  718;  Insurance  Co.  v.  Sortwell,  8  Allen,  217;  State  ».  Jersey  City,  1 
Dutch.  (N.  J.)  309. 

2  Wetmore  v.  Story,  22  Barb.  414, 1856. 


254  MUNICIPAL   CORPORATIONS.  [CH.  X. 

acts  of  the  common  council  of  New  York,  composed  of  a 
board  of  aldermen  and  a  board  of  assistant  aldermen.1 

§  227.  The  council  may  ascertain  facts  through  the  me- 
dium of  a  committee,  and  the  members  of  the  council  may, 
where  they  know  the  facts  of  their  personal  knowledge,  act 
without  further  inquiry.2  As  a  public  corporation  may  en- 
tirely revoke  the  powers  of  a  committee  it  has  appointed,  so  it 
may  control  the  execution  of  those  powers  by  increasing  the 
number  of  the  committee.  If  the  new  members,  either  by 
design  or  mistake,  are  excluded  from  acting,  the  proceedings 
of  the  others  will  be  irregular.3 

§  228.  At  any  time  before  the  rights  of  third  persons  have 
attached,  a  council  or  other  corporate  body  may,  if  consistent 
with  its  charter  and  rules  of  action,  rescind  previous  votes  and 
orders.4     Thus,  a  vote  levying  a  tax,  so  long  as  it  rests  in 

1  Wetmore  v.  Story,  22  Barb.  414,  1856.  A  subsequent  council  is  bound 
by  knowledge  duly  communicated  to  a  previous  council.  Bank  v.  Seton,  1 
Pet.  (U.  S.)  299,  1828.  In  Commonwealth  v.  Lancaster,  5  "Watts,  152,  Gibson, 
C.  J.,  expressed  his  opinion  to  be,  that  notwithstanding  a  by-law  or  rule 
requires  certain  corporate  acts  to  be  in  a  given  form,  and  that  alterations 
of  such  by-law  or  rule  shall  only  be  made  by  a  vote  of  two-thirds  of  the 
members,  yet  that  a  majority  may  repeal  the  by-law  or  rule,  and  may, 
without  such  repeal,  do  valid  acts,  not  in  the  prescribed  form,  by  a  major- 
ity vote. 

2  Bissell  v.  Jeffersonville,  24  How.  (U.  S.)  287,  296,  per  Clifford,  J.;  Com- 
monwealth v.  Pittsburg,  14  Pa.  St.  177,  1850.  As  to  power  of  council  to  ap- 
point officers,  and  when  it  may  delegate  its  powers  to  a  committee:  lb.; 
Preble  v.  Portland,  45  Maine,  241 ;  ante,  p.  109. 

s  Damon  v.  Granby,  2  Pick.  345, 1824.  In  this  case  it  was  further  held, 
where  the  agents  of  a  town  contracted  with  the  plaintiff  "  to  erect  a  meet- 
ing-house on  a  place  to  be  designated  by  a  committee  of  the  town,"  that 
the  town  might  disagree  to  the  selection,  and  "  designate  the  place  for 
themselves,  at  any  time  before  the  ground  was  prepared,"  on  indemnify- 
ing the  plaintiff  for  any  extra  labor  or  expense  which  their  fluctuating 
proceedings  may  have  occasioned.  A  notice  to  appear  before  a  committee 
to  whom  a  matter,  as  for  example,  the  laying  out  or  altering  of  a  street,  has 
been  duly  referred,  is  equivalent  to  a  notice  to  appear  before  the  city  coun- 
cil, as,  for  this  purpose,  the  committee  represent  the  council.  Preble  . 
Portland,  45  Maine,  241,  1858. 

*  Bigelow  v.  Hillman,  37  Maine,  58;  Eeiff  v.  Conner,  5  Eng.  (Ark.)  241; 
State  v.  Hoyt,  2  Oregon,  246;  ante,  pp.  86,  88;  Road  Case,  17  Pa.  St.  71,  75; 
New  Orleans  v.  St.  Louis  Church,  11  La.  An.  244.    "The  right  of  reconsider- 


CH.  X.J  MODE   OF   PROCEEDING   WHEN   CONVENED.  255 

mere  resolution,  and  has  not  been  acted  upon,  may  be  recon- 
sidered, and  if  rescinded,  tbe  collector  cannot  legally  proceed 
to  collect  tbe  tax.1 

§  229.  A  provision  of  a  city  cbarter,  that  the  ayes  and  nays 
shall  be  called  and  published  whenever  the  vote  of  the  common 
council  should  be  taken  on  any  proposed  improvement  in- 
volving a  tax  or  assessment  upon  the  citizens,  was  considered, 
by  two  of  the  three  members  of  the  Supreme  Court  of  New 
York,  notwithstanding  the  use  of  the  word  "shall,"  to  be 
directory  merely;  "the  essential  requisite  being  the  determin- 
ation of  the  corporation,  and  not  the  form  or  manner  of  ex- 
pressing that  determination." 2 

§  230.  Acts  done  when  less  than  a  legal  quorum  is  present,  or 
which  were  not  concurred  in  by  the  requisite  number,  are 
void.3     This  is  a  fundamental  rule  in  the  law  of  corporations ; 

ing  lost  measures  [at  the  same  meeting,  or  pursuant  to  its  rules]  inheres 
in  every  body  possessing  legislative  powers."  Per  Whelpley,  C.  J.,  Jersey 
City  v.  State,  1  Vroom  (N.  J.),  521,  529,  1863;  Red  v.  Augusta,  25  Ga.  386. 
"  All  deliberative  assemblies,  during  their  session,  have  a  right  to  do  and 
undo,  consider  and  reconsider,  as  often  as  they  think  proper,  and  it  is  the 
result  only  which  is  done."  Per  Kirkpatrick,  C.  J.,  in  State  v.  Foster,  2 
Halst.  (N.  J.)  101,  107,  1823.  See,  also,  State  v.  Jersey  City,  3  Dutch.  536. 
While  public  money  is  in  the  possession  of  the  proper  officer,  the  proper 
authorities  have  entire  control  over  it,  and  they  may,  so  far  as  the  officer 
holding  it  is  concerned,  rescind  a  prior  order  (not  yet  complied  with)  to 
pay  money  to  an  individual.  Tucker  v.  Justices,  13  Ire.  (N.  Car.)  Law,  434; 
Dey  v.  Lee,  4  Jones  (N.  Car.),  Law,  238. 

1  Stoddard  v.  Gilman,  22  Vt.  568;  Pond  v.  Negus,  3  Mass.  230. 

'  Striker  v.  Kelly,  7  Hill  (N.  Y.),  9,  24,  29,  1844,  Branson,  J.,  dissenting; 
S.  C.  in  Error,  2  Denio,  323 ;  Indianola  v.  Jones,  29  Iowa,  282 ;  In  re,  Mount 
Morris  Square,  2  Hill,  20;  Elmendorf  v.  Mayor,  &c.  of  N.  Y.  25  Wend.  693. 
In  Morrison  v.  Lawrence,  98  Mass.  216,  the  grant  of  an  important  special 
power  was  construed  to  require,  as  a  condition  to  its  exercise,  the  taking 
of  the  ayes  and  nays,  and  a  record  of  the  vote.  The  decision  or  determin- 
ation of  a  question  by  a  town  meeting  or  common  council  should  be,  and 
probably  must  be,  by  a  formal  vote  or  resolution.  People  ».  Adams,  9  Wend. 
333,  1832;  Denning  i>.  Roome,  6  Wend.  651,  1831. 

*  Logansport  v.  Legg,  20  Ind.  315,  1863 ;  Ferguson  v.  Chittenden  Co.  1 
Eng.  (Ark.)  479,  1846 ;  Price  v.  Railroad  Company,  13  Ind.  58,  1859 ;  Mc- 
Cracken  v.  San  Francisco,  16  Cal.  591 ;  Piemental  v.  San  Francisco,  21  Cal. 
351.  Number  present  and  acting,  how  proved :  13  Ind.  58,  supra.  Pres- 
ence of  quorum  when  presumed :  Insurance  Company  v.  Sortwell,  8  Allen, 
217. 


256  MUNICIPAL   CORPORATIONS.  [CH.  X. 

but  whether  in  favor  of  the  holder  of  negotiable  securities  is- 
sued, or  purporting  to  be  issued,  under  authority  conferred  by 
the  legislature,  the  corporation  might  not,  in  some  cases,  be 
estopped  to  show  that  a  quorum  was  not  present  or  that  the 
requisite  number  did  not  concur  in  the  act,  is  a  question  which 
remains,  perhaps,  to  be  settled.1 
1  See  ante,  p.  101,  Sec.  55;  post,  chapter  on  Contracts. 


CH.  XI.]  CORPORATE   RECORDS   AND  DOCUMENTS.  257 


CHAPTER  XI. 

Corporate  Records  and  Documents. 

§  231.  Corporations  have  the  incidental  power,  if  the  regu- 
lar clerk  is  temporarily  absent,  to  appoint  a  private  person  a 
clerk  pro  tern  for  the  purpose  of  making  the  entries  of  what  is 
transacted  at  the  corporate  meeting.  His  entries,  made  by 
the  direction  of  the  corporate  authorities,  or  entries  made  by 
the  regular  clerk  from  memoranda  furnished  by  the  clerk  pro 
tern,  are  competent  evidence  of  the  proceedings  of  the  meeting.1 

§  232.  The  clerk  or  officer  of  a  jSTew  England  town2  who 
has  made  an  erroneous  record,  may,  while  in  office  (but  not  after- 
wards), or  after  a  re-election  to  the  same  office,  amend  the  same 
according  to  the  truth,  being  liable,  like  a  sheriff  who  amends 
his  return,  for  any  abuse  of  the  right,  as  where  he  makes  a 
fraudulent  or  untruthful  amendment.  The  town  is  not  con- 
cluded or  bound  by  an  erroneous  record,  whether  made  by  de- 
sign or  accident,  unless  when  it  would,  on  general  principles, 
be  estopped.3 

1  Hutchinson  v.  Pratt,  11  Vt.  402,  1839.  See,  also,  Rex  v.  Mothersell,  1 
Stra.  93,  also  referred  to  infra.  Failure  of  clerk  to  take  oath  of  office  does  not 
invalidate  his  record :  Stebbins  v.  Merritt,  10  Cush.  27.  Ante,  Sec.  153.  Sig- 
nature of  chairman  to  minutes  affixed  at  a  day  subsequent  to  the  meeting, 
held  sufficient,  under  a  statute  requiring  the  minutes  of  corporate  meetings 
to  be  signed  by  the  chairman :  Miles  v.  Bough,  3  Gale  &  D.  119 ;  Inglis  v. 
Railway  Company,  16  Eng.  Law  and  Eq.  55.  See,  also,  chapters  relating  to 
Corporate  Meetings  and  Corporate  Officers. 

«  Ante,  p.  34. 

3  Cass  v.  Bellows,  11  Fost.  (N.  H.)  501,  1855 ;  Harris  v.  School  District,  8 
Fost.  58,  66, 1853 ;  Gibson  v.  Bailey,  9  N.  H.  168 ;  Whittier  v.  Varney,  10  N. 
H.'291;  Wells  v.  Battelle,  11  Mass.  477;  Low  e.  Pettingill,  12  N.  H.  340; 
Pierce  v.  Richardson,  37  N.  H.  306;  Scammon  v.  Scammon,  8  Fost.  429; 
President,  &c.  v.  O'Malley,  18  111.  407,  1857  ;  Mott  v.  Reynolds,  27  Vt.  (1 
Wms.)  206, 1855  ;  Boston  Turnpike  Co. «.  Pomfret,  20  Conn.  590, 1850 ;  com- 
pare Covington  v.  Ludk>w,  1  Met.  (Ky.)  295,  below  cited.  The  necessity 
and  reasonableness  of  the  doctrine,  stated  in  the  text,  are  thus  ex-pounded 
32 


258  MUNICIPAL   CORPORATIONS.  [CH.  XI. 

§  233-  In  a  case  in  Vermont,  the  elerk  of  the  town,  pend- 
ing a  trial,  amended  tlie  record  by  adding  his  signature  as 
clerk  to  the  record  of  the  warning  for  the  meeting  in  ques- 

by  Parker,  C.  J.,  in  Wells'!).  Battelle,  11  Mass.  477,  481,  1814:  "We  have  had 
frequent  occasion  to  perceive  the  great  irregularity  which  prevails  in  the 
records  of  our  towns  and  other  municipal  corporations;  and  the  courts  have 
always  been  desirous  to  uphold  these  proceedings,  where  no  fraud  or  wilful 
error  was  discoverable.  Too  much  strictness  on  subjects  of  this  nature 
would  throw  the  whole  body  politic  into  confusion  [Kellar  v.  Savage,  17 
Maine,  444].  For  it  cannot  be  expected  that,  in  all  corporations,  persons 
will  be  every  year  selected,  who  are  capable  of  performing  their  duty  with 
the  exactness  which  would  be  useful  or  convenient."  "The  first  entry 
made  by  the  clerk  here  [that  an  officer  was  sworn  into  office]  was  certainly 
defective,  but  the  defect  is  properly  cured  by  the  subsequent  entry  of  the 
existing  clerk,  he  being  the  same  person  that  officiated  at  the  time  of  the 
first  entry.  He  will  be  sufficiently  watched  by  interested  parties,  to  render 
a  deviation  from  truth  neither  safe  nor  easy."  The  doctrine  of  the  case  in 
11  Mass.  477,  was  followed  and  applied  in  Chamberlain  v.  Dover,  13  Maine, 
466,  1836,  where  it  was  further  held,  that  the  municipal  body  was  not 
bound  by  an  erroneous  record  of  a  clerk,  even  though  the  plaintiffs,  con- 
fiding in  its  correctness,  had  made  a  building  contract  with  the  "  contract- 
ing'and  building  committee  "  named  in  the  record.  The  meeting,  in  this 
case,  which  attempted  to  confer  this  power  upon  the  committee,  was  not  a 
legal  one,  because  not  held  at  the  time  and  place  appointed ;  and  it  was 
considered  by  the  court  that  the  plaintiffs'  remedy  was  against  the  commit- 
tee and  not  against  the  town,  if  the  former  acted  without  authority.  See, 
further,  as  to  correcting  and  amending  records,  Williams  v.  School  District, 
21  Pick.  75,  holding  that  where  two  different,  but  not  contradictory,  records 
were]  made  up  by  the  clerk  from  memoranda  taken  at  the  meeting  that 
both  were  originals  and  competent  testimony.  Clerk  cannot  amend 
records  after  he  is  out  of  office :  School  District  v.  Atherton,  12  Met.  105,  1846 ; 
Hartwell  v.  Littleton,  13  Pick.  229,  232,  1832 ;  Contra,  to  the  effect  that  he 
may  amend,  though  out  of  office  at  the  time,  see  Gibson  v.  Bailey,  9  N.  H. 
168,  1838.  But  may,  while  he  is  in  office:  Bishop  v.  Cone,  3  N.  H.  513, 1821 ; 
Hoag  v.  Durfey,  1  Aiken  (Vt,),  286,  1826 ;  Chamberlain  v.  Dover,  13  Maine, 
466,  1836.  That  successor  cannot  make  the  amendment :  State  v.  Williams, 
25  Maine,  561,  565 ;  29  ib.  523 ;  Taylor  v.  Henry,  2  Pick.  397.  But  the  cor- 
poration might,  in  proper  cases,  authorize  the  successor  to  supply  the  omit- 
ted, or  correct  the  erroneous,  entry :  Hutchinson  v.  Pratt,  11  Vt.  402,  419. 

Ill  New  Hampshire  it  is  the  practice  to  allow  these  amendments  only  upon 
the  order  of  the  Supreme  Court  or  Court  of  Common  Pleas  by  the  officer  by 
whom  they  were  made,  even  after  he  has  ceased  to  hold  the  office.  A  clear 
case  must  be  made  out.  The  court  do  not  permit  any  erasures  or  interlin- 
eations of  the  original  record,  but  require  the  amendment  to  be  written 
upon  a  separate  piece  of  paper,  signed  by  the  proper  officers,  and  with  it 
a  copy  of  the^rder  allowing  the  amendment ;  and  this  paper  is  annexed  to 
the  original  record:  Pierce o.  Richardson,  37  N.  H.  306,  311,  per  Bell,  J. 


CH.  XI.]  CORPORATE    RECORDS   AND    DOCUMENTS.  259 

tion.  His  right  to  do  so,  though  he  had  meantime  been  out 
of  office,  but  was  again  restored,  was  sanctioned  by  the  Su- 
preme Court,  Redfield,  C.  J.,  remarking:  "  We  think,  in  gen- 
eral, it  must  be  regarded  as  the  right  of  the  clerk  of  a  town  or 
other  municipal  corporation,  while  having  the  custody  of  the 
records,  to  make  any  record  according  to  the  facts.  His  hav- 
ing been  out  of  office,  and  restored  again,  could  not  deprive 
him  of  that  right.  But  even  an  officer  could  not  alter  or 
amend  a  record  upon  the  testimony  of  third  persons  ordinarily, 
and  ought  not  to  do  it  upon  his  own  recollection  unless  in  very 
obvious  cases  of  omission  or  error,  of  which  the  present  might 
fairly  be  regarded  as  one,  probably.  Such  amendments  should 
ordinarily,  be  made  by  the  original  documents  or  minutes."1 
The  right  of  the  clerk  ex  parte  to  amend  the  records  of  the  pro- 
ceedings of  town  corporations  was  very  thoroughly  considered 
in  a  case  in  Connecticut.2  The  statute  of  that  state  requires 
town  clerks  to  keep  the  record  books  of  their  respective  towns, 
and  to  enter  truly  all  the  votes  and  proceedings  of  the  town. 
The  town  clerk  made  an  entry  showing  that  at  a  town  meeting 
held  in  1843,  the  town  assumed  to  the  plaintiff  a  liability  to 
commence  January  1,  1844.  If  the  time  thus  stated  was  the 
true  time,  the  plaintiff  had  a  cause  of  action  against  the  town. 
In  1849,  the  clerk,  not  upon  his  own  personal  knowledge,  nor 
upon  any  written  memorandum,  but  on  the  information  of 
others  (with  the  correctness  of  which,  however,  he  was  perfect- 
ly satisfied),  amended  the  record  so  as  to  show  that  the  liabil- 
ity of  the  town  was  not,  by  the  vote,  to  commence  until  April 
1,  1844.  If  this  was  the  true  time,  the  plaintiff  had  no  cause 
of  action.  The  majority  of  the  court  (three  judges  against 
two)  held  that  the  clerk,  still  continuing  in  office,  was  compe- 
tent to  amend  the  record  —  that  this  power  is  derived  solely 
from  his  official  character,  and  does  not  depend  on  the  permis- 
sion of  the  court,  in  which  the  record  is  offered  as  an  instru- 
ment of  evidence,  nor  on  inquiry  into  the  truth  of  it  as  origin- 

1  Mott ».  Reynolds,  27  Vt.  (1  Wms.)  206,  208,  1855.  Amendment  in  open 
court  of  town  record  by  clerk  of  the  town  pending  trial,  to  which  the  clerk 
is  a  party,  and  to  meet  a  particular  decision  of  the  court,  disregarded  :  Had- 
ley  1).  Chamberlain,  11  Vt.  618,  1839.  Commented  on  and  distinguished : 
Mott  v.  Reynolds,  27  Vt.  (1  Wms.)  206,1855. 

2  Boston  Turnpike  Co.  v.  Pomfret,  20  Conn.  590, 1850. 


260  MUNICIPAL   CORPORATIONS.  [CH.  XI. 

ally  made,  or  as  amended,  and  that  such  a  record  is,  in  such 
an  action,  conclusive  evidence  of  its  own  truth.  The  dissent- 
ing judges,  without  denying  the  power  of  amendment  in  all 
cases,  were  of  opinion  that  in  view  of  the  lapse  of  time,  the 
absence  of  written  memoranda,  or  personal  recollection  by  the 
clerk,  the  clerk  had  no  authority  to  make  the  amendment,' and 
that  the  correct  course  would  have  been  to  have  made  applica- 
tion to  the  proper  court  by  legal  process,  e.  g.  mandamus,  to 
correct  the  mistake  in  the  record,  if  one  existed,  and  thus  give 
the  opposite  interested  party  an  opportunity  to  show  that  the 
record  was  already  right.  It  would  seem,  under  the  special 
circumstances  that  the  dissenting  view  was  the  better  one. 

§  234.  Where  the  clerk  makes  up  the  record  of  the  pro- 
ceedings of  the  council,  and  it  is  read  and  approved  at  the  same 
or  at  a  subsequent  meeting,  the  author  doubts  his  authority, 
on  his  own  motion,  to  amend  it  afterwards  without  the  di- 
rection of  the  council.  The  council,  unless  private  rights  have 
attached,  may,  doubtless,  order  the  record  of  its  own  proceed- 
ings, even  after  it  has  once  been  approved,  to  be  corrected 
according  to  the  facts.  The  Court  of  Appeals  of  Kentucky, 
without  determining  the  extent  of  the  power  of  the  same 
council  at  a  subsequent  meeting,  to  correct  errors  and  omis- 
sions in  the  journal  entry  of  proceedings  at  a  previous. meet-, 
ing,  decided  that  this  could  not  be  done  by  an  entirely  new  board 
in  respect  to  the  official  action  of  their  predecessors  ;  and  it  was 
accordingly  held,  that  where  the  records,  as  kept,  showed  only 
that  in  August,  1854,  an  ordinance  was  reported,  a  new  coun- 
cil could  not,  in  1856,  add  to  the  records  words  showing  that 
the  ordinance  had  passed,  nor  could  the  fact  of  its  passage  be 
shown  by  extrinsic  evidence.1 

§  235.  Parol  evidence  may,  if  necesssary,  be  admitted  to  ap- 
ply a  resolution  or  recorded  vote  of  a  town  to  its  proper  subject 
matter,2  but  not,  in  general,  to  explain,  enlarge,  or  contradict 

1  Covington  v.  Ludlow,  1  Met.  (Ky.)  295,  1858 ;  see,  also,  Lexington  v. 
Headley,  5  Bush  (Ky.),  508, 1869  ;  Graham  v.  Carondelet,  33  Mo.  262 ;  State 
v.  Jersey  City,  1  Vroom  (N.  J.),  93, 148,  and  chapters  on  Corporate  Meetings 
and  Ordinances,  post. 

2  Baker  v.  Windham,  13  Maine  (1  Shep.),  74, 1836.  In  this  case  the  town 
of  Windham  entered  upon  its  records  the  following :  "  Voted  to  indemnify 


CH.  XI.]  CORPORATE    RECORDS   AND   DOCUMENTS.  261 

its  terms  or  meaning,  in  respect  to  matters  (as,  for  example, 
laying  out  a  highway  or  street)  regularly  within  the  juris- 
diction of  the  town  or  its  officers,  and  where  the  entry  of. 
record  is  made  in  pursuance  of  law.1  Where  the  record  of  a 
meeting  states  that  "  the  inhabitants  met  and  adjourned  the 
meeting,"  parol  evidence  may  be  admitted  to  show  when  and 
where  the  meeting  was  had,  how  many  were  present,  and  how 
many  afterwards  came,  and,  finding  no  meeting,  went  home.2 

§  236.  Parol  evidence  in  a  collateral  action  cannot  be  re- 
ceived to  contradict  the  records  of  a  public  corporation,  required 
by  law  to  be  kept  in  writing,  or  to  show  a  mistake  in  the  mat- 
ters as  therein  recorded.  Thus,  if  the  records  of  a  school  dis- 
trict show  that  the  district  voted  to  authorize  their  clerk  to 
call  and  warn  "  their  annual  meetings,"  parol  evidence  in  an 
action  by  the  district  is  not  admissible  to  prove  that  the  real 
vote  of  the  district  was  to  authorize  the  clerk  to  call  and  warn 

Benj.  Baker,  in  his  costs  in  the  action  against  A.  Small,  which  have  or  may 
arise  in  the  same  on  account  of  Gray  line."  In  an  action  by  Baker  against 
the  town  to  recover  costs  of  a  suit  which  he  had  brought  against  Small, 
parol  evidence  was  adjudged  to  have  been  rightly  admitted  to  show  that 
Baker  brought  the  action  in  his  name  against  Small,  on  account  of  the  Gray 
line,  at  the  request  of  the  selectmen  at  Windham,  for  the  purpose  of  set- 
tling a  disputed  line  between  that  and  the  adjoining  town,  with  the  express 
agreement  that  the  town  should  pay  all  costs,  and  to  show  that  these  facts. 
were  before  the  town  when  the  vote  was  passed,  and  also  to  show  that  the- 
suit  so  instituted  was  conducted  under  the  advice  and  direction  of  the- 
authorities  of  the  town. 

1  Manning  v.  Fifth  Parish,  &c.  6  Pick.  16 ;  Crommett  v.  Pearson,  18  Maine,. 
344 ;  Covington  v.  Ludlow,  1  Met.  (Ky.)  295 ;  Cabot  v.  Britt,  36  Vt.  349  -r 
Lexington  v.  Headley,  5  Bush  (Ky.),  508,  1869. 

2  Chamberlain  v.  Dover,  13  Maine,  466,  1836.  But  parol  evidence  of  an 
adjournment  to  another  day  cannot  be  given  so  as  to  validate  acts  done  on 
the  day  adjourned  to :  Taylor  «.  Henry,  2  Pick.  397.  Where  a  statute 
requiring  a  record  to  be  made  of  the  persons  sworn  into  office  is  directory,, 
if  the  record  is  not  made,  the  fact  may  be  shown  by  parol  or  other 
competent  evidence :  Kellar  v.  Savage,  17  Maine  (5  Shep.),  444,  1840.  In 
the  M.  E.  Corporation  v.  Herrick,  25  Maine,  354,  it  was  held,  that  to  estab- 
lish a  resulting  trust  in  the  corporation  [with  respect  to  lands],  it  could  not 
prove  the  authority  of  the  committees  to  act  for  it  by  parol  evidence  ;  the 
authority  should  appear,  and  could  only  be  shown  by  its  records.  Further 
as  to  what  facts  may  be  shown  by  parol :  Bath  o.  County  Commissioners, 
36  Maine,  74 ;  35  ib.  373 ;  Smith  v.  County  Commissioners,  42  Maine,  395. 


262  MUNICIPAL   CORPORATIONS.  [CH.  XI. 

all  district  meetings.1  So,  where  the  record  of  a  town  stated 
the  warning  to  have  heen  on  the  17th,  and  the  meeting  to 
.have  been  held  on  the  19th,  of  January,  parol  evidence  cannot 
be  admitted  to  show  that,  by  mistake,  the  clerk  inserted  the 
"  19th  "  instead  of  the  "  29th."  The  remedy  is,  to  have  him 
correct  the  record,  if  in  office,  according  to  the  truth.2 

§  237.  But  a  distinction  has  sometimes  been  drawn  between 
evidence  to  contradict  facts  stated  on  the  record  and  evidence 
to  show  facts  omitted  to  be  stated  upon  the  record.  Parol  evi- 
dence of  the  latter  kind  is  receivable  unless  the  law  expressly 
and  imperatively  requires  all  matters  to  appear  of  record,  and 
makes  the  record  the  only  evidence.3  Thus,  in  a  well- 
considered  case  in  the  Supreme  Court  of  the  United  States,4 

1  School  District  v.  Atherton,  12  Met.  105,  1346  :  Morrison  v.  Laurence,  98 
Mass.  219 ;  Mahew  v.  Gayhead,  13  Allen,  129. 

2  Durfey  v.  Hoag,  1  Aiken  (Vt.),  286,  1826.  So  in  Connecticut,  if  a  town 
corporation  makes  an  erroneous  record  of  its  proceedings,  this  cannot  be 
contradicted  in  a  collateral  action.  In  such  an  action  the  record  is  conclu- 
sive. If  false,  and  the  corporatipn  will  not  correct  the  record,  a  party  in- 
terested may,  by  mandamus,  co  ;.pel  it  to  make  the  correction:  Boston 
Turnpike  Co.  v.  Pomfret,  20  Conn.  590,  1850.  Upon  this  point,  all  the 
judges,  though  different  on  other  points,  seemed  to  agree.  Post,  Chap, 
XIX.  ' 

Purchasers  of  such  paper  [bonds  issued  by  cities  for  stock  in  railroads] 
look  at  the  form  of  the  paper,  the  law  which  authorized  it  to  be  issued,  and 
the  recorded  proceedings  on  which  it  is  based.  Therefore,  as  against  pur- 
chasers, the  record  cannot  be  contradicted  by  parol  evidence :  Per  Clifford, 
J.,  in  Bissell  v.  Jeffersonville  (action  on  municipal  bonds),  24  How.  (U.  S.) 
287, 298.  See  chapter  on  Contracts,  post,  as  to  the  rights  of  holders  of  such 
securities. 

*  Moor  v.  Neufleld,  4  Greenl.  44,  1826.  "  The  only  legal  mode  of  proving 
facts  on  record  is  by  the  record  itself,  or  by  an  attested  copy  of  it."  lb.  per 
Mellen,  C.  J. ;  School  District  v.  Atherton,  12  Met.  105,  113,  1846,  per  Dewey, 
J. ;  Langsdale  v.  Bonton,  12  Ind.  467 ;  Indianapolis  v.  Imberry,  17  Ind.  175. 
179;  Bigelow  v.  Perth  Amboy,  1  Dutch.  (N.  J.)  297,  1855;  Gearhart  v. 
Dixon,  1  Pa.  St.  224,  1845.  Where  the  law  or  charter  requires  the  clerk  to 
keep  a  journal  of  all"  of  the  acts  and  proceedings  of  the  city  council,  that,  or 
a  copy,  is  the  proper  evidence  of  the  official  doings  of  the  body.  City  of 
Lowell  v.  Wheelock,  11  Cush.  391,  1853;  Harris  v.  Whitcomb,  4  Gray,  433; 
Morrison  v.  Lawrence,  98  Mass.  219. 

4  Bank,  &c.  v.  Dandridge,  12  Wheat.  64.  Delivering  the  opinion  of  the 
court,  Mr.  Justice  Story,  arguendo,  makes  these  important  observations: 
"Would  the  omission  of  the  corporation  to  record  its  own  doings  have 


CH.  XI.J  CORPORATE   RECORDS   AND    DOCUMENTS.  2fi3 

it  was  held,  that  the  acts  of  a  corporation  might  be  proved 
otherwise  than  by  their  records  or  some  written  document, 
even  although  it  was  its  duty  "to  keep  a  fair  and  regular 
record  of  its  proceedings."  The  statute  did  not  prescribe  that 
nothing  but  a  recorded  vote  or  written  document  should  bind 

prejudiced  the  rights  of  the  party  relying  upon  the  good  faith  of  an  actual 
vote  of  the  corporation?  If  such  omission  would  not  be  fatal  to  the  plaint- 
iff in  suits  against  the  corporation  (as,  in  our  opinion,  it  would  not  be),  it 
establishes  the  fact,  that  acts  of  the  corporation,  not  recorded,  may  be 
established  by  parol  proofs,  and,  of  course,  by  presumptive  proofs.  In 
reason  and  justice,  there  does  not  seem  any  solid  ground  why  a  corpora- 
tion may  not,  in  case  of  the  omission  of  its  officers  to  preserve  a  written 
record,  give  such  proofs  to  support  its  rights  as  would  be  admissible  in 
suits  against  it  to  support  adverse  rights.  The  true  question  in  such  case 
would  seem  to  be,  not  which  party  was  plaintiff  or  defendant,  but  whether 
the  evidence  was  the  best  the  nature  of  the  case  admitted  of,  and  left 
nothing  behind  in  the  possession  or  control  of  the  party  higher  than  sec- 
ondary evidence."  "  We  do  not  admit,  as  a  general  proposition,  that  the 
acts  of  a  corporation  are  invalid  merely  from  an  omission  to  have  them 
reduced  to  writing,  unless  the  statute  creating  it  makes  such  writing  indis- 
pensable as  evidence,  or  to  give  them  an  obligatory  force.  If  the  statute 
imposes  such  restriction,  it  must  be  obeyed."  (12  Wheat.  69,  74.)  The 
same  principle  was  applied,  in  the  case  of  the  United  States  v.  Fillebrown, 
7  Pet.  28,  to  the  acts  of  boards  of  public  agents  or  officers,  and  it  was  in 
that  case  accordingly  held,  that  the  board  of  commissioners  of  the  navy 
hospital  fund,  not  being  required  by  law  to  reduce  its  proceedings  to  writ- 
ing, in  order  to  make  them  binding,  oral  evidence  of  such  proceedings  (no 
record  having  been  made)  was  competent.  Langsdale  v.  Bonton,  12  Ind. 
467. 

"  It  appears  to  us,  that  in  the  absence  of  all  record,  it  might  be  competent 
for  the  defendants  (trustees  and  collector  of  the  corporation  justifying 
under  its  proceedings)  to  show,  by  parol,  the  proceedings  of  the  meeting. 
Where  there  is  a  record,  it  cannot  be  added  to  or  varied  by  parol.  Taylor 
v.  Henry,  2  Pick.  403.  But  where  there  is  an  omission  to  make  records, 
the  rights  of  other  persons  acting  under  or  upon  the  faith  of  a  vote  not 
recorded,  ought  not  to  be  prejudiced.  And  it  would  seem  that  the  right  in 
such  a  case  is  reciprocal  in  the  corporation  and  in  those  who  claim  ad- 
versely to  it."  Per  Williams,  C.  J.,  Hutchinson  v.  Pratt,  11  Vt.  402,  421. 
But  compare  Stevens  «.  Eden  &c.  Society,  12  Vt.  688;   16  lb.  439;  17  lb.  337. 

The  rights  of  creditors,  or  of  third  persons,  cannot  be  prejudiced,  by  the 
neglect  of  the  council  to  keep  proper  minutes ;  against  the  corporation 
what  the  council  in  fact  did,  may  be  sliown  by  evidence  aliunde  the  record 
kept  by  it.  Bigelow  v.  Perth  Amboy,  1  Dutch.  (N.  J.)  297,  1855;  San  An- 
tonio ®.  Lewis,  9  Texas,  69,  1852. 

Proof  of  the  action  and  orders  of  a  municipal  board  of  health,  see  chapter 
on  Ordinances,  post,  Sec.  305,  note. 


264  MUNICIPAL   CORPORATIONS.  [CH.  XI. 

the  corporation  or  be  received  as  evidence.  Snch  written  evi- 
dence was  not  deemed  indispensable  unless  positively  required. 
The  direction  to  keep  a  record  was  regarded  as  directory. 

§  238.  Where  the  records  of  a  municipal  corporation  have 
been  so  carelessly  and  imperfectly  kept  as  not  to  show  the 
adoption  of  a  resolution  or  other  acts  of  the  city  council,  and 
there  is  no  written  evidence  in  existence,  parol  testimony  may 
be  admitted;  e.  g.  to  show  that  certain  work  was  done  by 
authority  of  the  city,  by  proving  the  passage  of  a  resolution  of 
the  council,  the  appointment  of  a  committee  to  make  the  ex- 
penditure, their  report  after  the  work  was  done,  and  its  adop- 
tion by  the  council.1 

§  239.  Mandamus  is  an  appropriate  remedy  for  the  duly 
elected  and-  authorized  officer  of  a  public  or  municipal  corpor- 
tion  to  compel  the  delivery  to  him  by  his  predecessor,  or  by  an 
usurper,  of  the  books,  papers,  records,  and  seal  pertaining  to  the 

1  Ross  v.  Madison,  1  Ind.  (Carter)  281,  1848  ;  Langsdale  v.  Bonton,  12  Ind. 
467 ;  Indianapolis  v.  Imberry,  17  Ind.  175, 179.  In  the  same  state,  however, 
county  commissioners  and  township  trustees  are  required  by  law  to  keep  a 
true  record  of  their  proceedings,  and  it  is  held  that  they  "can  only  speak 
by  their  record"  when  legally  assembled  :  County -Commissioners  ».  Chit- 
wood,  8  Ind.  504,  507,  1851 ;  Trustees  v.  Osborne,  9  Ind.  458.  So,  in  Maine, 
"  school  districts  are  required  by  law  to  keep  a  record  of  their  proceedings 
by  a  sworn  clerk,  and  such  proceedings  can  be  proved  only  by  the  record 
or  a  copy  thereof  duly  authenticated : "  Jordan  ».  School  District,  38  Maine 
164, 1854.  The  records  of  public  or  quasi  corporations  are  not,  in  Ohio,  con- 
sidered to  be  "of  that  absolute  verity  that  any  person  shall  be  estopped  to 
show  the  truth  in  consequence  of  any  matter  which  they  contain"  or  omit 
to  contain ;  and  it'was  accordingly  adjudged  that  the  fact  whether  an  offi- 
cial bond  was  received  or  refused  and  rejected  may  be  shown  by  parol  evi- 
dence, on  which  point  the  record  was  silent :  Westerhaven  v.  Clive,  5  Ohio, 
136, 1831,  as  to  records  of  township  trustees.  See  Green  v.  State,  8  Ohioi 
310,  1838,  in  which  it  was  queried,  whether  the  county  commissioners  could 
appoint  an  agent  by  parol  or  only  by  record?  In  Iowa,  it  has  been  held 
that  where  no  record  entry  is  made  such  an  appointment  may  be  shown  by 
parol  testimony  and  that  the  agent  acted  accordingly :  Poweshiek  County 
v.  Eoss,  9  Iowa,  511 ;  and  see  ace.  Boss  v.  Madison,  1  Carter  (Ind.),  281 ; 
compare  Meeker  v.  Van  Bensellaer,  15  WendT  397.  Where  recording  is 
not  required  by  charter  or  law,  resolutions  of  a  council  are  admissible  in 
evidence,  although  not  recorded :  Darlington  v.  Commonwealth,  41  Pa.  St. 
68.    See  post,  Sec.  247. 


CH.  XI.]  CORPORATE    RECORDS   AND    DOCUMENTS.  265 

office.1  And  such  a  corporation  may  maintain  replevin  in  its 
name  for  the  possession  of  its  records ;  and  this  action  is  main- 
tainable against  a  stranger  or  any  officer  or  person  not  legally 
entitled  to  the  custody  of  the  records.2 

§  240.  Concerning  the  'right  to  inspect  corporate  documents 
and  papers,  the  following  points  have  been  ruled  as  stated  by 
Mr.  Willeock :  Every  corporator  has  a  right  to  inspect  all  the 

1  Proprietors  of  Church  v.  Slack,  7  Cush.  226,  239,  1851 ;  Commonwealth 
v.  Athearn,  3  Mass.  285 ;  Rex  ■v.  Wildman,  2  Strange,  879 ;  King  v.  Ingram, 
1  W.  Bl.  50 ;  King  v.  Bound,  4  Ad.  &  El.  139 ;  Cranford  v.  Powell,  2  Burr. 
1013 ;  Bex  v.  Clapham,  1  Wils.  305 ;  3  Bl.  Com.  310 ;  Kimball  v.  Lamprey,  19 
N.  H.  215, 1848,  where  the  above  authorities  are  cited  and  digested  by  Oil- 
christ,  C.  J.;  Taylor  o.  Henry,  2  Pick.  397;  Parish,  &c.  v.  Stearns,  21  Pick 
148, 156 ;  Bates  v.  Plymouth,  14  Gray,  163  ;  Perkins  v.  Weston,  3  Cush.  549. 

The  following  points  have  been  ruled  in  respect  to  corporations  in  Eng- 
land :  If  the  custody  of  their  documents  belong  to  one  of  their  officers  in 
virtue  of  his  office,  the  corporation  cannot  compel  him  to  deliver  them  up, 
but  may  require  that  he  submit  them  to  their  inspection  whenever  they 
think  proper:  Rex  v.  Ipswich,  2  Ld.  Baym.  1238;  Bex  v.  Pigram,  2  Burr. 
767 ;  Willc.  345  ;  Glover,  260.  Sometimes  the  custody  of  these  documents 
is  entrusted  to  the  town  clerk  or  other  officer,  merely  as  the  servant  of  the 
corporation,  in  which  case  they  may  appoint  another  to  receive  them,  and 
if  they  are  not  delivered  over  after  demand,  the  corporation  may  obtain 
possession  of  them  by  an  action  of  detinue,  or  the  court  will  compel  a  de- 
livery by  mandamus:  lb.  If  the  predecessor  in  office,  or,  he  being  dead, 
his  personal  representative,  or  another  person  having  possession  of  corpor- 
ate documents  under  him,  refuse  to  deliver  them  over  to  the  successor  or 
the  corporation,  on  a  proper  application,  the  court  will  grant  a  mandamus  to 
compel  him  to  do  so:  Bex  v.  Nottingham,  1  Sid.  31 ;  Anonymous,  1  Barnard, 
402 ;  Willc.  345 ;  Glover,  260.  This  writ  is  said,  indeed,  to  lie  to  any  per- 
son, whether  stranger  or  corporator,  who  happens  to  be  in  possession  of  the 
hooks  of  a  corporation,  and  who  refuses  to  deliver  them  up :  Proprietors  of 
Church  v.  Slack,  7  Cush.  226,  239,  1851,  per  Fletcher,  J. ;  Bex  v.  Ingram, 
1  W.  Bl.  50 ;  Willc.  346 ;  Glover,  261.    Post,  Chap.  XX. 

2  Parish,  &c.  ».  Stearns,  21  Pick.  148 ;  School  District  v.  Lord,  44  Maine, 
374  —  replevin  for  records  of  district.  Defendant  claimed  them  as  legal 
clerk  of  the  district.  The  court,  holding  that  replevin  would  lie,  say  :  "The 
action  is,  therefore,  rightfully  brought,  and  may  be  maintained  if  the  de- 
fendant was  not  the  legal  clerk  of  the  district:"  Per  Rice,  J.,  44  Maine,  374, 
384.  The  right  or  title  to  an  office  cannot  be  determined  by  a  civil  action 
between  the  respective  claimants,  as  by  an  action  of  replevin  for  the  offi- 
cial books  and  papers,  and  until  the  issue  as  to  the  right  is  determined  by 
quo  warranto  or  other  proper  proceeding,  no  suit  in  replevin  can  be  main- 
tained by  one  claimant  against  the  other  for  the  possession  of  the  appur- 
tenances of  the  office :  Desmond  v.  McCarty,  17  Iowa,  525. 

34 


26H  MUNICIPAL   CORPORATIONS.  [CH.  XI. 

records,  books,  and  other  documents  of  the  corporation; 'upon 
all  proper  occasions ;  and  if,  upon  application  for  that  purpose, 
the  officer  who  has  the  custody  refuse  to  show  them,  the  court 
will  grant  a  mandamus  to  enforce  his  right.1  One  who  has  a 
prima  facie  title  to  a  corporate  office  has  a  right  to  inspect  such 
documents  as  relate  to  that  title,  and  may  obtain  a  mandamus 
for  this  purpose  before  any  suit  has  been  instituted.2  A  cor- 
porator has  a  right  to  inspect  these  documents,  to  obtain  in- 
formation as  to  his  rights,  whether  in  dispute  with  a  stranger 
or  the  corporation  itself,  or  any  of  its  members.3  When  the 
corporator's  application  to  inspect  is  founded  on  his  general 
right,  he  has  a  mandamus,  but  when  it  is  founded  on  a  suit 
pending,  he  obtains  a  rule.4  In  an  action  by  one  corporation 
against  another,  rules  were  made  absolute  for  each  corporation 
to  inspect  so  much  of  the  books  and  records  as  related  to  the 
subject  in  dispute.5  The  motion  for  the  rule-  to  inspect  and  to 
have  copies  should  be  supported  by  affidavits  showing  the 
foundation  of  the  claim,  the  application,  the  proper  officer  and 
his  refusal.  The  rule  will  require  the  expense  attending 
obedience  to  be  borne  by  the  applicant,  and  will,  in  proper 
cases,  allow  the  officer  a  remuneration  for  his  trouble.  If  the 
officer  disobey,  without  sufficient  reason,  the  rul«  to  allow  an 
inspection  or  to  give  copy  of,  or  to  produce  corporate  docu- 
ments, the  court  will  grant  an  attachment  against  him.6 

1  Bex  v.  Shelley,  3  Term  E.  142;  Hex  v.  Babb,  ib.  580;  Harrison  v.  Wil- 
liams, 3  Barn.  &  Cress.  162 ;  Sogers  v.  Jones,  5  D.  &  B.  484 ;  Willc.  347 ; 
Glover,  262.  Any  person  sufficiently  interested  is  entitled  to  inspect  en- 
tries in  books  of  public  corporations  relating  to  public  matters  of  the  cor- 
poration, where  the  evidence  is  required  in  a  civil  action :  Grant,  Corp.  311. 
See,  also,  People  t.  Cornell,  47  Barb.  329,  in  which  it  is  held,  that  a  corpora- 
tor without  any  special  or  private  interest  has  the  right  to  inspect  and 
take  copies  of  all  public  documents  and  records  under  reasonable  restric- 
tions, to  secure  the  safety  of  the  originals. 

2  Eex  v.  Newcastle,  2  Stra.  1223 ;  Eex  v.  Lucas,  10  East,  235 ;  Eex  v.  Pur- 
nell,  1  Wils.  242.    Post,  Chap.  XX. 

3  Edwards  v.  Vesey,  Cas.  Temp.  Hardw.  128 ;  Eex  v.  Babb,  3  Term  E. 
580 ;  Eex  v.  Bridgman,  2  Stra.  1203 ;  Grant  on  Corp.  312. 

*  Eex  v.  Shelley,  3  Term  E.  142. 

6  Mayor  of  London  v.  Lynn  Eegis,  1  H.  Bl.  206 ;  Mayor,  &c.  of  Southamp- 
ton v.  Graves,  8  Term  E.  592. 

6  Willc.  352,  353 ;  Grant,  311  et  seq.  See,  also,  People  *.  Mott,  1  How.  Pr. 
E.  247 ;  Cockburn  v.  Bank,  13  La.  An.  289 ;  People  v.  Walker,  9  Mich.  328. 


CH.  XI.J  CORPORATE   RECORDS   AND    DOCUMENTS.  267 

§  241.  A  public  or  municipal  corporation,  required  by  law 
to  keep  a  record  of  its  public,  or  official,  proceedings,  may  it- 
self us*  such  records  as  evidence  in  suits  to  which  it  is  a  party ; 
but  the  records  must  first  be  properly  authenticated.1  Indeed, 
in  actions  generally,  including  actions  against  agents  or  offi- 
cers of  the  corporation,  as  individuals,  the  original  minutes  or 

1  School  District  v.  Blakeslee,  13  Conn.  227,  1839 ;  Denning  v.  Roome,  6 
Wend.  651 ;  Wood  v.  Jefferson  County  Bank,  9  Cow.  205 ;  State  e.  Van  Win- 
kle, 1  Dutch.  (N.  J.)  73 ;  McFarlane  v.  Insurance  Company,  4  Denio,  392 ; 
Turnpike  Company  v.  McKean,  10  Johns.  154 ;  Denning  v.  Boome,  above 
cited,  holds,  that  the  original  minutes  or  records  of  the  corporation  of  a  city 
were  competent  evidence  of  corporate  acts,  without  further  proof  of  their 
verity.  Records  of  corporation  held  admissible,  though  not  required  by 
law  to  be  kept,  and,  where  defective,  explainable  by  parol  evidence :  Gear- 
hart  v.  Dixon,  1  Ph.  St.  224,  1845 ;  Adams  v.  Mack,  3  N.H.493,  499,  per  Rich- 
ardson, C.  J. 

The  following  points  have  been  decided  respecting  English  corporations : 
Where  charters  or  corporation  books  are  to  be  given  in  evidence,  being 
records  or  instruments  of  a  public  nature,  they  may  themselves  be  produced ; 
and  examined  copies  of  their  contents  may  also  be  given  in  evidence.  The 
Court  of  King's  Bench  will  not  make  a  rule  to  produce  the  originals,  unless  it 
be  shown  by  affidavit  that  a  new  entry,  rasure,  or  some  other  circumstance, 
renders  an  inspection  necessary.  To  give  books  this  public  character,  it 
must  appear,  if  they  be  questioned,  that  they  have  been  publicly  kept,  and 
that  entries  ha,ve  been  made  by  the  proper  officers ;  not  but  that  entries 
made  by  other  persons  may  be  good,  if  the  town  clerk  be  sick  or  refuses  to 
attend,  which,  however,  must  be  proved,  and  the  reason  why  they  were 
not  made  by  the  proper  officer  shown :  Rex  v.  Mothersell,  1  Stra.  93 ; 
Brocas  v.  Mayor,  &c.  of  London,  1  Stra.  307 ;  Rex  v.  Gwyn,  Mayor,  &c.  1 
Stra.  401;  Willc.  343;  Glover,  258;  Rex  v.  Smith,  1  Stra.  126 ;  Grant,  318. 
Whoever  produces  the  book  must  establish  its  authority  before  he  deliv- 
ers it  in,  and  may  be  required  to  show  where  it  has  been  kept,  and  how  it 
came  to  his  possession :  Rex  v.  Mothersell,  1  Stra.  93 ;  Rex  v.  Thetford,  12 
Vin.  Abr.  90,  p.  16 ;  Willc.  344 ;  Glover,  258.  A  book  containing  minutes 
of  some  corporate  acts  which  occurred  ten  years  ago,  entirely  written  by 
the  relator's  clerk,  who  was  not  an  officer  of  the  corporation,  and  appearing 
never  to  have  been  kept  among,  or  esteemed  as,  one  of  the  corporate  docu- 
ments, or  even  seen  before  the  present  application  for  an  information,  is 
not  admissible  as  a  corporate  document :  Rex  v.  Mothersell,  1  Stra.  93.  Nor 
is  the  copy  of  a  letter  made  fifty  years  ago  and  found  in  the  corporation 
chest,  but  the  original  must  be  first  accounted  for,  as  though  it  had  been 
found  in  the  possession  of  a  private  person  :  Rex  v.  Gwyn,  1  Stra.  401.  Nor 
are  entries  of  a  private  nature,  in  the  public  books  of  a  corporation,  evidence 
for  them  in  suppprt  of  a  right  which  they  claim,  for  this  were  allowing  the 
party  to  fabricate  evidence  for  themselves  :  Rex  v.  Debenham,  2  B.  &  Ad. 
187,  >  Marriage  v.  Lawrence,  3  B.  &  Ad.  144 ;  Grant  on  Corp.  318,  319,  and 
cases ;  2  Phill.  Ev.  122 ;  Angel]  &  Ames,  Corp.  Sec.  679  ;  Willc.  344. 


268  MUNICIPAL   CORPORATIONS.  [OH.  XI. 

records  of  the  corporation  are  competent  evidence  of  the  acts 
and  proceedings  of  the  corporation.  Duly  authenticated  copies 
have  often  been  received  in  evidence,  where  the  original  docu- 
ment or  proceeding  was  of  a  public  nature.1 

§  242.  An  admission  by  a  corporation  of  a  fact  or  of  a 
liability  duly  and  properly  made,  is,  of  course,  evidence  against 
it.  But  a  municipal  corporation,  by  accepting,  that  is,  receiving 
the  report  of  a  committee  of  inquiry,  does  not  admit  the  truth  of  the 
facts  stated  therein ;  and  such  a  report,  though  accepted  by  a 

1  Denning  v.  Eoome,  6  Wend.  651,  1831 ;  citing  Owings  v.  Speed,  5  Wheat. 
424 ;  Bex  v.  Mothersell,  1  Stra.  93 ;  ]  2  Vin.  Abr.  90,  pi.  16.  See,  also,  People 
v.  Adams,  9  Wend.  333 ;  Wood  v.  Jefferson  County  Bank,  9  Cow.  194,  205 ; 
Angell  &  Ames  on  Corp.  Sec.  679 ;  Turnpike  Company  v.  McKean,  10  Johns. 
154.  In  Denning  v.  Eoome,  supra,  the  defendant  was  sued  in  his  individual 
capacity  for  removing,  by  order  of  the  city  council,  a  certain  fence  erected 
by  the  plaintiff.  The  defendant  (although  it  was  argued  that,  being  the 
agent  of  the  corporation,  the  latter  should  be  considered  as  the  party  and 
its  own  records  as  incompetent  in  its  own  favor  to  justify  its  acts)  was  al- 
lowed to  show  by  the  records  of  the  corporation  that  the  fence  was  on  a 
portion  of  the  public  street. 

The  clerk  of  a  city  or  town  is/by  law,  the  proper  certifying  officer  to 
authenticate  copies  of  the  votes  and  ordinances  thereof.  Such  copies  are  ad- 
missible in  evidence  without  preliminary  proof,  as  in  ordinary  instruments, 
of  the  genuineness  of  the  clerk's  signature,  but  are,  of  course,  only  prima  facie 
evidence,  and  they  may  be  shown  to  be  inaccurate,  false,  or  forged  :  Com- 
monwealth v.  Chase,  6  Cush.  248,  1850.  Where  the  original  document  is  of 
a  public  nature,  and  would  be  evidence  if  produced,  it  is  not  necessary  to 
show  the  document  itself,  for  it  may  be  required  many  places  at  the  same 
time  ;  for  that  reason  an  immediate  sworn  copy,  made  by  the  proper  offi- 
cer, will  be  admitted :  Rex  v.  Lord  George  Gordon,  Doug.  593 ;  1  Phil.  Ev. 
405  ;  Willc.  344 ;  Glover,  259 ;  Grant,  318,  lays  down  the  rule  generally, 
that  sworn  copies  of  public  entries  in  books  of  public  corporations  are  ad- 
missible wherever  the  originals  would  be,  and  the  corporation  will  not  be 
compelled  to  produce  their  books  in  court  except  for  reasons  shown.  It  has, 
however,  been  held,  that  the  by-laws  of  a  corporation,  in  the  absence  of 
special  provision,  must  be  proved  by  the  production  of  the  by-laws  them- 
selves, as  these  are  the  primary  evidence :  Lumbard  v.  Aldrich,  8  N.  H.  31 ; 
Moore  v.  Newfield,  4  Greenl.  44 ;  Hallowell  Bank  v.  Hamlin,  14  Mass.  178. 
So,  of  the  votes  of  a  corporation,  the  record  is  the  best  evidence :  Haven  v. 
Asylum,  13  N.  H.  532.  See,  also,  Manning  v.  Parish,  6  Pick.  6 ;  Taylor  v. 
Henry,  2  Pick.  403  ;  Green  v.  Indianapolis,  25  Ind.  490.  It  may  be  remarked 
that  there  are  statutes  in  various  states  under  which  certified  copies  would 
be  receivable  in  evidence  instead  of  the  originals.  Licenses  from  a  city  or 
town  authorizing  persons  to  pursue  particular  employments,  &c,  need  not 
be  in  writing :  Boston  v.  Schaffer,  9  Pick.  415, 1830. 


CH.  XI.J  CORPORATE   RECORDS   AND   DOCUMENTS.  269 

vote  of  the  corporation,  is  not  admissible  in  evidence  against 
it.1  In  an  action  of  assumpsit  against  a  town  corporation,  to 
support  his  cause  of  action,  the  plaintiff  produced  the  hooks  of 
the  corporation,  by  which  it  appeared  that  the  sum  demanded 
in  the  declaration  had  been  allowed  by  the  council  to  the 
plaintiff  on  the  5th  of  September,  on  final  settlement,  at  which 
time  the  plaintiff  was  present  and  assented  to  the  settlement. 
The  defendant  contended  that  the  resolution  had  been  passed 
by  mistake,  and  offered  to  show,  by  the  same  books,  the  pass- 
age, three  (lays  afterwards,  in  the  plaintiff's  absence,  of  a  resolu- 
tion rescinding  the  amount  of  the  plaintiff's  account  It  was 
held  that  the  subsequent  resolution  was  not  competent  evi- 
dence, the  court  basing  this  opinion  on  the  proposition  that  the 
books  of  a  corporation  are  evidence  against,  but  not  in  its 
favor,  in  an  action  against  the  corporation  by  a  stranger.2 

1  Dudley  v.  Weston,  1  Met.  477,  1846 ;  followed  by  Collins  v.  Dorchester,  6 
Cush.  396,  1850 ;  and  both  relating  to  defective  highways.  In  the  King  v. 
Hardwick,  11  East,  578,  a  rated  parishioner  made  a  confession,  which  was 
admitted  in  evidence  against  the  parish,  on  the  ground  that  the  parish  was 
an  aggregate  corporation  or  company,  of  which  he  was  a  member :  com- 
pare Mayor,  &c.  «.  Long,  1  Campb.  68.  But  this  is  not  the  law  in  this  coun- 
try, and  it  may  be  safely  laid  down  that  the  admission  of  a  corporator  can- 
not be  received  against  the  body :  Hartford  Bank  v.  Hart,  3  Day  (Conn.), 
493,  denying  King  v.  Hardwick,  supra;  Osgood  v  Manhattan  Co.  3  Cow.  612, 
623.  But  the  admission  of  an  officer  when  made  in  the  ordinary  course  of 
his  official  duty  and  within  the  scope  of  his  powers,  may  be  admissible 
against  the  corporation  :  Peyton  v.  Hospital,  3  C.  &  P.  363 ;  Angell  &  Ames 
on  Corp.  Sec.  309;  lb.  Sec.  659.    Ante,  p.  211,  note. 

Notice  to  corporator  or  member  is  not  notice  to  the  corporation ;  it  should 
be  formally  given  as  such  to  the  authorized  head  or  proper  officer :  Powles  v. 
Page,  3  Com.  B.  31 ;  Edwards  v.  Railroad  Co.  1  Myl.  &  Cr.  659 ;  Grant,  Corp. 
315.  Lancey  brought  an  action  for  libel  against  the  mayor  and  clerk  of  the 
city  of  Bangor  for  the  following  statement  contained  in  their  annual  report : 
"  Balance  due  from  John  Lancey,  Collector,  $6,004.50."  The  balance  was 
shown  to  be  less.  It  was  held  that  there  was  no  presumption  of  law  that 
the  officers  of  a  city  or  town  knew  the  contents  of  the  city  records,  and  no 
rule  of  law  obliging  them  to  be  acquainted  therewith,  and  unless  the  de- 
fendants made  the  publication  maliciously  they  were  entitled  to  a  verdict : 
Lancey  v.  Bryant,  30  Maine  (17  Shep.),  466,  1849.    Ante,  p.  211,  note. 

2  Mayor  v.  Wright,  2  Port.  (Ala.)  230,  1835 ;  citing  1  Stark  Ev.  292 ;  but  is 
not  the  proposition  too  broadly  stated  ? 


270  MUNICIPAL   CORPORATIONS.  [CH.  XII. 


CHAPTEE  XII. 

Municipal  Ordinances  or  By-Laws. 

§  243.  This  subject  will  be  considered  under  the  following 
heads : — 

1.  Definition,  General  Nature,  and  Common  Law  Requisites 
of  Ordinances  —  Sees.  244-264. 

2.  Of  the  Signing,  Publication,  and  Recording  —  Sees.  265- 
269. 

3.  Of  the  Power  to  Impose  Fines,  Penalties,  and  Forfeitures 
—  Sees.  270-287. 

4.  On  Whom  Binding,  and  Notice  thereof—  Sees.  288-290. 

5.  Ordinances  Relating  to  the  Licensing,  Taxing,  and  Regu- 
lation of  Amusements  and  Occupations,  including  the  Sale  of 
Intoxicating  Liquors  —  Sees.  291-299. 

6.  Ordinances  Relating  to  Public  Offences  —  Sees.  300-302. 

7.  Ordinances  Relating  to  the  Public  Health,  Safety  and 
Convenience :  Herein  of  Hospitals,  Cemeteries,  and  Burials ; 
Nuisances;  Markets,  and  Inspection  Regulations;  Dangerous 
Occupations  and  Practices;  and  of  the  Police  Power  and  Gen- 
eral Welfare  Clause  in  Charters — Sees.  303-340. 

8.  Mode  of  Enforcing  Ordinances :  Herein  of  Actions  and 
Prosecutions,  and  their  Nature ;  Mode  of  Pleading  Ordinances; 
Requisites  of  Complaints  to  Enforce  Ordinances ;  Construction, 
Defences,  Evidence,  &c.  —  Sees.  341-355. 

Definition,  General  Nature,  and  Common  Law  Requisites  of 

Ordinances. 

§  244.  Definition.  —  Under  the  general  term  of  ordinances 
have  been  sometimes  included  all  the  regulations  by  which  a 
corporation  is  governed,  including  special  charter  or  statute 
regulations,  as  well  as  by-laws.  In  this  country,  the  term 
ordinance  is  not  usually  applied,  if  ever,  to  charter  or  acts  of 
the  legislature  respecting  municipal  corporations,  regulating 


CH.  XII.]  REQUISITES    OF   ORDINANCES.  271 

their  powers  and  mode  of  action,  but  is  limited  in  its  applica- 
tion to  the  acts,  in  the  nature  of  local  laws,  passed  by  the 
proper  assembly  or  governing  body  of  the  corporation.  In- 
deed, in  general  and  professional  use,  the  term  ordinance  is 
almost,  if  not  quite,  equivalent  in  meaning  to  the  term  by-law, 
and  is  the  word  most  generally  used  to  denote  the  by-laws 
adopted  by  municipal  corporations.  According  to  Lord  Coke, 
the  word  by  or  bye  signifies  a  habitation,  and  thence  a  by-law 
in  England,  and  a  by-law  or  ordinance  in  this  country,  may  be 
defined  to  be  the  law  of  the  inhabitants  of  the  corporate  place 
or  district,  made  by  themselves  or  the  authorized  body,  in  dis- 
tinction from  the  general  law  of  the  country  or  the  statute  law 
of  the  particular  state.1 

'  Willc.  73 ;  2  Kyd,  95,  98. 

Definition  and  Nature  of  Ordinances  or  By-Laws. —  In  a  case  in  Massachu- 
setts, denying  to  towns  in  that  state  power,  under  the  statute  to  prohibit  by 
ordinance  the  sale  of  intoxicating  liquor,  Mr.  Chief  Justice  Shaw  observed 
that  the  term  "by-law"  has  a  limited  and  peculiar  meaning,  and  is  used  to 
designate  those  ordinances  or  regulations  which  a  corporation,  as  one  of  its 
legal  incidents,  has  power  to  make  with  respect  to  its  own  members  and  its 
own  concerns.  In  respect  to  municipal  and  quasi  corporations,  this  mean- 
ing has  been  somewhat  extended,  but  even  here  the  word  is  used  to  desig- 
nate such  ordinances  and  regulations  as  have  reference  to  legitimate  and 
proper  municipal  or  corporate  purposes.  There  is  a  broad  distinction 
between  the  power  of  a  public  corporation  to  make  "by-laws"  and  the 
general  power  to  make  "  laws ; "  authority  to  make  the  former  does  not  in- 
clude the  power  to  legislate  upon  general  subjects:  Commonwealth  v. 
Turner,  1  Cush.  493.  A  municipal  by-law,  according  to  the  definition  of  a 
distinguished  English  Judge,  is  a  rule  obligatory  over  a  particular  district, 
not  being  at  variance  with  the  general  laws  of  the  realm,  and  being  reason- 
able and  adapted  to  the  purposes  of  the  corporation ;  and  any  rule  or  ordi- 
nance of  a  permanent  character  which  a  corporation  is  empowered  to 
make,  either  by  the  common  or  statute  law,  is  a  by-law:  Per  Parke,  B.,  19 
Law  J.  (N.  S.)  Q.  B.  135. 

Resolutions  and  Ordinances  Discriminated. —  A  resolution  is  an  order  of  the 
council  of  a  special  and  temporary  character ;  an  ordinance  prescribes  a  per- 
manent rule  of  conduct  or  government:  Blanchard  v.  Bissell,  11  Ohio  St.  96, 
103,  per  Scott,  J.  Where  the  charter  commits  the  decision  of  a  matter  to 
the  council  and  is  silent  as  to  the  mode,  the  decision  may  be  evidenced  by  a 
resolution,  and  need  not  necessarily  be  by  an  ordinance:  State  v.  Jersey  City, 
3  Dutch.  (N.  J.)  493,  1859.  A  resolution  has  ordinarily  the  same  effect  as  an 
ordinance,  as  both  are  legislative  acts :  Sower  v.  Philadelphia,  35  Pa.  St.  231, 
1860;  Gas  Company  v.  San  Francisco,  6  Cal.  190.  Where  the  power  to  make 
ordinances  -and  by-laws  is  general,  and  no  form  in  which  these  shall  be 
enacted  or  passed  is  prescribed,  it  was  held  that  an  ordinance  containing  a 


272  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

§  245.  Authority  Delegated  to  Municipalities — Nature  of  Ordi- 
nances—  Repeal. — Although  the  proposition  that  the  legislature 
of  a  state  is  alone  competent  to  make  laws  is  true,  yet  it  is  also 
settled  that  it  is  competent  for  the  legislature  to  delegate  to 
municipal  corporations  the  power  to  make  by-laws  and  ordi- 
nances,1 which,  when  authorized,  have  the  force,  as  to  persons 
hound  thereby,  of  laws  passed  by  the  legislature  of  the  state.2 

prohibition  and  annexing  a  penalty  was  valid,  notwithstanding  it  purported 
by  its  terms  to  be  a  resolution.  In  substance  it  was  an  ordinance  or  regula- 
tion, and  the  form  in  which  it  was  passed  did  not  make  it  void :  Municipal- 
ity a.  Cutting,  4  La.  An.  335, 1849.  By  one  section  of  the  charter,  the  coun- 
cil were  authorized  to  make  "by-laws,  ordinances,  resolutions,  and  regula- 
tions," and  by  another  "by-laws  and  ordinances"  were  to  be  submitted  to 
the  mayor  for  his  approval,  and  it  was  held  that  there  was  no  such  distinc- 
tion as  to  require  that  "by-laws  and  ordinances"  must,  and  "regulations 
and  resolutions "  need  not,  be  submitted  to  the  mayor,  to  be  approved  by 
him:  Kepner  ».  Commonwealth,  40  Pa.  St.  124.  The  words  "regulation," 
"resolution,''  and  "ordinance,"  as  used  in  the  charter,  denned  by  Lowrie, 
C.  J. :  lb. 

Mode  of  Exercising  Power. —  Where  the  power  to  do  certain  acts  or  pass 
certain  ordinances  is  conferred  upon  the  council,  but  the  particular  mode  of 
exercising  the  power  is  not  prescribed,  this  may  be  done  by  ordinance,  and 
any  mode  may  be  adopted  which  does  not  infringe  the  charter  or  general 
law  of  the  land.  Thus,  for  example,  power  was  given  to  a  city  "  to  levy 
and  collect  a  special  tax,"  not  specifying  the  mode  of  collection ;  held  that 
an  ordinance  requiring  the  mayor  to  enforce  the  collection  of  the  tax  by 
suit,  in  the  nature  of  an  action  of  debt,  was  valid,  as  it  did  not  violate  the 
charter  or  the  general  law :  Cincinnati  v.  Gwynhe,  10  Ohio,  192 ;  Markle  v. 
Akron,  14  Ohio,  586,  1846.  Prescribed  mode  essential:  Cross*.  Morristown, 
18  N.  J.  Eq.  305.    Post,  Chap.  XIX. 

1  Perdue  v.  Ellis,  18  Geo.  586,  1855 ;  St.  Paul  v.  Coulter,  12  Minn.  41, 1866; 
Commonwealth  ».  Duquet,  3  Yeates  (Pa.),  493  ;  Hill  v.  Decatur,  33  Geo.  203; 
State  v.  Clark,  8  Post.  (N.  H.)  176,  1854;  Milne  ».  Davidson,  5  Martin  (La.), 
586,  1827 ;  Marble  v.  Akron,  14  Ohio,  586,  590,  1846 ;  Mayor,  &c.  ■».  Morgan, 
7  Martin  (La.  O.  S.),  1,  per  Martin,  J. ;  Metcalfe.  St.  Louis,  11  Mo.  103, 1847. 
In  Strauss  v.  Pontiac,  40  111.  301,  1866,  the  Supreme  Court  held  that  a  pro- 
vision in  a  town  charter  forbidding  any  person  from  doing  a  certain  act, 
fixing  the  amount  of  fine,  and  prescribing  the  penalty,  was  a  complete 
enactment  of  itself;  that  an  ordinance  to  the  same  effect  was  void,  and  that 
a  party  could  be  prosecuted  only  under  the  charter,  and  not  under  the 
ordinance.  In  view  of  the  general  authority  given  in  the  same  charter  to 
make  all  ordinances  necessary  to  carry  into  effect  the  powers  granted  in  the 
charter,  the  correctness  of  this  decision  may  admit  of  fair  debate,  although 
it  is  undoubtedly  true  that  no  ordinance  is  necessary  where  the  prohibition 
in  the  charter  is  complete,  the  penalty  fixed,  and  the  remedy  prescribed : 
Ashton  v.  Ellsworth,  48  111.  299. 

2  Heland  v.  Lowell,  3  Allen,  407,  1862 ;  Church  v.  City,  &c.  5  Cow.  538, 
1826 ;  St.  Louis  v.  Boffinger,  19  Mo.  13,  15,  per  Gamble,  J. ;   McDermott  e. 


OH.  XII.]  REQUISITES    OP   ORDINANCES.  273 

§  246.  Ordinances,  being  among  the  most  important  and 
solemn  acts  of  a  corporation,  it  is  essential  to  their  validity 
that  they  shall  be  adopted  by  the  -proper  body,' duly  assembled, 
and  in  the  manner  prescribed  by  the  charter.  What  is  neces- 
sary to  constitute  a  valid  corporate  meeting,  and  the  manner 
of  performing  valid  corporate  acts,  are  subjects  treated  of  in 
another  chapter.1  When  the  mode  of  enacting  ordinances  is 
prescribed,  it  must  be  pursued.  Thus,  if  the  charter  provides 
that  no  by-law  shall  be  passed  unless  introduced  at  a  previous 
regular  meeting,  this  is  a  restriction  on  the  power,  and  must 
be  observed;  and,  accordingly,  an  ordinance  for  opening  a 
street  was  adjudged  void,  on  the  ground  that  the  name  of  one 
of  the  commissioners  was  changed  without  laying  the  ordi- 
nance over  until  another  meeting.2  Municipal  ordinances 
otherwise  valid,  may,  like  an  act  of  the  legislature,  be  adopted 
to  take  effect  in  future  and  upon  the  happening  of  a  contin- 
gent event.3 

§  247.  In  the  absence  of  record  evidence  of  the  passage  of  an 
ordinance,  it  is  not  competent  to  establish  its  adoption  by  ex- 
Board  of  Police,  5  Abb.  Pr.  E.  422,  1857.  A  city  council  is  "  a  miniature  gen- 
eral assembly,  and  their  authorized  ordinances  have  the  force  of  laws 
passed  by  the  legislature  of  the  state : "  Per  Scott,  J.,  Taylor  v.  Carondelet 
(forfeiture  clause  in  lease),  22  Mo.  105, 1855.  In  Hopkins  v.  Mayor  of  Swan- 
sea, 4  M.  &  W.  621,  640,  Lord  Abinger  said:  "  The  by-law  has  the  same  ef- 
fect within  its  limits,  and  with  respect  to  the  persons  upon  whom  it  law- 
fully operates,  as  an  act  of  parliament  has  upon  the  subjecti  at  large," 
Valid  ordinances-of  corporations  are  as  binding  on  the  corporators  and  in* 
habitants  of  the  place  as  the  general  laws  of  the  state  upon  the  citizens  at 
large  :  Milne  v.  Davidson,  5  Martin  (La.),  586,  1837.  And,  therefore,  it  has 
been  held,  that  contracts  between  the  inhabitants  of  a  city  in  violation  of 
the  express  provisions  of  a  valid  ordinance  of  a  municipal  corporation  are 
illegal,  and  cannot  be  enforced :  Milne  v.  Davidson  (lease  of  house  for  pri- 
vate hospital),  5  Martin  (La),  586,  1827;  Heland  v.  Lowell,  3  Allen,  407, 
1867  ;  but  compare  Baker  v.  Portland,  10  Am.  Law  Beg.  (N.  S.)  559,  and  see 
Judge  Redfield's  note.  The  courts  will  not  enjoin  the  passage  of  unauthor- 
ized ordinances,  and  will  act  only  when  steps  are  taken  to  make  them 
available  :  Chicago  e.  Evans,  24  111.  52, 1860 ;  Smith  v.  McCarthy,  56  Pa.  St, 
359. 

1  Ante,  Chap.  X. 

2  State  v.  Bergen,  33  N.  J.  (Law)  39, 1868,  distinguished  from  State  v.  Jer- 
sey City,  2  Dutch.  448,  where  the  variance  was  immaterial. 

8  Baltimore  v.  Clunet,  23  Md.  449, 1865  ;    Railway  Company  v.  Baltimore, 
21  Md.  93, 1863 ;  State  v.  Kirkley,  29  Md.  85, 1868.    Ante,  p.  63,  Sec.  23. 
35 


274  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

trinsic  testimony ; l  but  where  unanimity  is  necessary  to  legal 
authority  to  make  an  order,  and  an  order  is  entered,  it  will  be 
presumed,  when  the  contrary  does  not  appear,  that  it  was 
made  with  the  required  unanimity.2 

§  248.  Courts  will  not,  in  general,  inquire  into  the  motives 
of  members  of  the  council  in  passing  ordinances.3  But  in  Ohio, 
in  a  case  where  the  legislature  chartered  a  gas  company,  re- 
serving the  power  of  control,  and  subsequently  empowered  the 
city  council  to  regulate  the  price  of  gas,  the  court  considered 
the  intention  to  be  to  limit  the  company  to  a  fair  and  reason- 
able price,  and  that  it  must  be  fairly  exercised,  and  if,  in  the 
colorable  exercise  of  the  power,  a  majority  of  the  members, 
for  a  fraudulent  purpose,  combined  to  fix  the  price  at  a  rate  at 
which  they  knew  it  could  not  be  made  and  sold  without  loss, 
their  action  would  not  bind  the  company,  aud  in  such  a  case, 
their  good  faith,  it  was  held,  might  be  inquired  into.4 

§  249.  Since  a  valid  by-law  never  becomes  obsolete,  it  re- 
mains in  force  until  repealed  by  the  legislature  or  the  corpora- 
tion. The  power  to  make  includes  the  power  to  repeal.  The 
repeal  cannot  operate  retrospectively  to  disturb  private  rights 
vested  under  it.6     Therefore,  the  legislature  having  authorized 

1  Covington  »  Ludlow,  1  Met.  (Ky.)  295,  1858.    See  ante,  Sec.  238. 

2  Lexington  v.  Headley,  5  Bush  (Ky.),  508,  1869. 

5  Freeport  v.  Marks,  59  Pa.  St.  253 ;  Buell  v.  Ball,  20  Iowa,  282  (collateral 
action  between  third  persons). 

4  State  v,  Cincinnati  Gas  Company,  18  Ohio  St.  262,  1868,  distinguished 
from  Fletcher  v.  Peck,  6  Cranch.  87  ;  Bank  v.  United  States,  1  G.  Greene, 
553.  The  courts  will  not  inquire-,  even  on  the  complaint  of  the  state,  into 
the  motives  which  governed  members  of  the  legislature  in  the  enactment 
of  a  law,  or  allow  to  be  shown,  for  the  purpose  of  defeating  the  operation  of 
the  law,  that  it  was  passed  by  fraud,  corruption,  and  bribery  of  the  mem- 
bers :    "Wright  v.  Defrees,  8  Ind.  298 ;    followed,  McCulloch  v.  State,  11  ib. 

■  424,  431,  1858  ;  S  P.  Sunbury,  &b.  Eailroad  Company  v.  Cooper,  7  Am.  Law 
Eeg,  158,  1858. 

5  Bex  v.  Ashwell,  12  East,  22 ;  3  Term  R.  198 ;  State  *.  City  Clerk,'  &c.  7 
Ohio  St,  355 ;  Stoddard  v.  Giltnan,  22  Vt.  568 ;  Pond  v.  Negus,  3  Mass.  230. 
Ante,  Chap.  X. ;  State  v.  Graves,  19  Md.  351,  1862 ;  Bigelow  o.  Hillman,  37 
Maine,  52;  Reiff  v,  Conner,  5  Eng.  (Ark.)  241;  Road  Case,  17  Pa.  St.  71,  75. 
An  act  changing  an  incorporated  town  into  a  city  does  not  of  itself  repeal 
pre-existing  ordinances :  Per  Strong,  J.,  Trustees  of  Academy  v.  Erie,  31  Pa. 
St.  515, 1858.    Ante,  pp,  98,  99, 


CH.  XII.]  REQUISITES   OF   ORDINANCES.  275 

a  religious  corporation  to  establish  a  cemetery  within  the  lim- 
its of  a  city,  on  obtaining  the  consent  of  the  city,  and  such 
consent  having  been  given,  the  city  authorities  cannot,  after 
their  consent  has  been  acted  upon,  repeal  the  resolutions  giving 
it,  and  enjoin  the  religious  corporation  from  the  use  of  the 
cemetery,  unless,  indeed,  it  is  shown  to  be  an  actual  nuisance, 
detrimental  to  the  health  of  the  city,  in  which  case  its  police 
and  governmental  powers  might  doubtless  be  exercised.1 

§  250.  Mode  of  Conferring  the  Power —  Construction  of  Grants 
of  Authority. — Municipal  cbarters,  or  incorporating  acts,  are 
sometimes  silent  as  to  the  power  to  pass  by-laios  or  ordinances, 
and  where  this  is  the  case,  the  municipal  body  has  the  power, 
incidental  to  all  corporations,  to  enact  appropriate  by-laws. 
Occasionally,  the  charter  or  incorporating  act,  without  any 
specific  enumeration  of  the  purposes  for  which  by-laws  may 
be  made,  contains  a  general  and  comprehensive  grant  of  power 
to  pass  all  such  as  may  seem  necessary  to  the  well-being  and 
good  order  of  the  place.  More  frequently,  however,  the  char- 
ter or  incorporating  act  authorizes  the  enactment  of  by-laws 
in  certain  specified  cases  and-  for  certain  purposes ;  and  after 
this  specific  enumeration  a  general  provision  is  added,  that  the 
corporation  may  make  any  other  by-laws  or  regulations  neces- 
sary to  its  welfare,  good  order,  &c,  not  inconsistent  with  the 
constitution  or  laws  of  the  state.  This  difference  is  essential 
to  be  observed,  for  the  power  which  the  corporation  would  pos- 
sess under  what  may,  for  convenience,  be  termed,  "  the  gen- 
eral welfare  clause,"  if  it  stood  alone,  may  be  limited,  qualified, 
or,  when  such  intent  is  manifest,  impliedly  taken  away  by 
provisions  specifying  the  particular  purposes  for  which  by-laws 
may  be  made.  It  is  clear  that  the  general  clause  can  confer 
no  authority  to  abrogate  the  limitations  contained  in  special 
provisions.  "When  there  are  both  special  and  general  pro- 
visions, the  power  to  pass  by-laws  under  the  special  or  express 
grant  can  only  be  exercised  in  the  cases,  and  to  the  extent,  as 
respects  those  matters,  allowed  by  the  charter  or  incorporating 

1  New  Orleans  v.  St.  Louis  Church,  11  La.  An.  244,.  1856,  distinguished 
from  Presbyterian  Church  v.  Mayor,  5  Cow.  538 ;  Musgroye  v.  Catholic 
Church,  10  La.  An.  431     Ante,  p.  110,  Sec.  61. 


276  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

act ;  and  the  power  to  pass  by-laws  under  the  general  clause 
does  not  enlarge  or  annul  the  power  conferred  by  the  special 
provisions  in  relation  to  their  various  subject  matters,  but  gives 
authority  to  pass  by-laws,  reasonable  in  their  character,  upon 
all  other  matters  within  the  scope  of  their  municipal  authority, 
and  not  repugnant  to  the  constitution  and  general  laws  of  the 
state.1  And  it  has  been  very  properly  held,  that  a  special 
grant  of  power  to  a  municipal  corporation  to  adopt  ordinances 
on  enumerated  subjects  connected  with  municipal  concerns,  is 
in  addition  to  the  incidental  power  of  the  corporation.2 

1  State  v.  Ferguson,  33  N.  H  424,  1856,  where  this  subject  is  ably  treated 
in  a  judgment  delivered  by  Mr.  Justice  Foster,  holding  a  by-law  of  the  city 
of  Concord,  in  relation  to  the  sale  of  intoxicating  liquor,  invalid  as  contra- 
vening the  special  provisions  of  the  charter,  and  therefore  not  sustainable 
under  the  general  welfare  clause  of  the  charter. 

"  The  power  to  make  by-laws,  when  not  expressly  given,  is  implied  as  an 
incident  to  the  very  existence  of  a  corporation,  but  in  the  case  of  an  express 
grant  of  the  power  to  enact  by-laws  limited  to  certain  specified  cases  and 
for  certain  purposes,  the  corporate  power  of  legislation  is  confined  to  the 
objects  specified,  all  others  being  excluded  by  implication : "  Per  Sawyer, 
J.,  arguendo,  in  State  ».  Ferguson,  33  N.  H.  424,  430,  1856;  citing  2  Kyd  on 
Corp.  102,  Angell  &  Ames  on  Corp.  177,  and  Child  v.  Hudson's  Bay  Com- 
pany, 2  P.  Wms  207.  The  true  rule  in  such  cases  may,  perhaps,  be  correct- 
ly expressed  to  be,  that  the  enumeration  of  special  cases  does  not,  unless 
the  intent  be  apparent,  exclude  the  implied  power  any  further  than  neces- 
sarily results  from  the  nature  of  the  special  provisions :  Heisembrittle  v. 
Charleston,  2  McMullen,  233 ;  Wadleigh  v.  Gilnian,  3  Fairf.  (Maine)  408 ; 
State  v.  Clark,  8  Foster  (N  H  ),  176,  and  comments  in  33  N.H.432;  State 
v.  Freeman,  38  N.  H.  426 ;  Commonwealth  v.  Turner,  1  Cush.  (Mass.)  493 ; 
Collins  v.  Hatch,  18  Ohio,  523.  See  New  Orleans  v.  Philipi  (taxation),  9  La. 
An.  44. 

In  Georgia,  the  Superior  Courts  adopt  the  following  as  the  true  rule  for 
ascertaining  the  extent  of  the  power  of  a  city  to  pass  ordinances.  "  The  city 
council  is  restrained  to  such  matters,  whether  specially  enumerated  or  in- 
cluded under  general  grant,  as  are  indifferent  in  themselves,  such  matters 
as  are  free  from  constitutional  objection  and  have  not  been  the  subject  of 
general  legislation ;  or,  as  it  is  expressed  in  the  charter,  are  not  repugnant 
to  the  constitution  or  laws  of  the  land :"  Dubois  v.  Augusta  (health  ordi- 
nance), Dudley  (Geo.)  Rep.  30,  1831;  Williams  v.  Augusta  (powder  ordi- 
nance), 4  Geo.  E.  509,  514, 1848.  Power  to  pass  necessary  by-laws  is  inciden- 
tal, but  this  power  is  limited  not  only  by  the  terms,  but  the  spirit  and  de- 
sign, of  the  charter,  and  the  general  principles  and  policy  of  the  common 
law:  Taylor  v.  Griswold,  2  Green  (N.  J.),  222,  1834;  Mount  Pleasant  e. 
Breeze,  11  Iowa,  399,  1860,  per  Wright,  J. 

2  State  t  Morristown,  33  N.  J.  (Law)  57,  1868  Depue,  J.,  in  his  opinion, 
distinguishes  such  a  case  from  Norris  v.  Staps,  Hobart,  210,  where  the  cor- 


CH.  XII.]  REQUISITES    OF    ORDINANCES.  277 

§  251.  Ordinances  cannot  enlarge  or  change  the  Charter  or  Stat- 
ute.—  Since  all  of  the  powers  of  a  corporation  are  derived  from 
the  law  and  Its  charter,  it  is  evident  that  no  ordinance  or  by-law 
of  a  corporation  can  enlarge,  diminish,  or  vary,  its  powers.1  A  sim- 
ilar rule  obtains  in  England,  where  it  is  held,  that  neither  tne 
king's  charter  nor  any  by-law  can  introduce  an  alteration  in 
rules  which  have  been  prescribed  to  a  corporation  by  an  act  of 
parliament.2  By-laws  are,  in  their  nature,  strictly  local,  and 
subordinate  to  the  general  laws. 

poration  was  created  by  the  Crown,  and  where  it  was  held  that  a  special 
clause  in  the  letters  patent  authorizing  the  corporate  body  (a  fellowship  of 
weavers)  to  make  by-iaws,  did  not  add  to  implied  powers,  and  that  its  by- 
laws were  subject  to  the  general  law  of  the  realm  and  subordinate  to  it. 
"  But,"  he  adds,  "  a  special  grant  of  power  to  a  municipal  corporation  is  an 
entirely  different  thing ;  it  is  a  delegation  of  authority  to  legislate  by  ordi- 
nance on  the  enumerated  subjects,  and  does  add  to  the  powers  incident  to 
the  creation  of  the  corporation.  The  numerous  instances,  in  our  own  state, 
of  the  grant  of  such  powers  in  relation  to  the  opening  and  improvement  of 
streets,  the  making  of  sewers,  and  the  assessment  of  taxes,  afford  illustra- 
tions of  this  distinction."    lb.  62. 

1  Thompson  v.  Carroll,  2?  How.  422, 1859 ;  Andrews  v.  Insurance  Compa- 
ny, 37  Maine,  256,  1854 ;  Thomas  v.  Richmond,  TJ.  S.  Supreme  Court,  Dec  T. 
1871,  not  yet  reported.  "A  power  vested  by  legislation  in  a  city  corpora- 
tion, to  make  by-laws  for  its  own  government  and  the  regulation  of  its  own 
police,  cannot  be  construed  as  imparting  to  it  the  power  to  repeal  the 
[general]  laws  in  force,  or  to  supersede  their  operation  by  any  of  its  ordi- 
nances. Such  a  power,  if  not  expressly  conferred,  cannot  arise  by  mere 
implication,  unless  the  exercise  of  the  power  given  be  inconsistent  with  the 
previous  law,  and  does  necessarily  operate  as  its  repeal  pro  tanto.  Nor  can 
the  presumption  be  indulged,  that  the  legislature  intended  that  an  ordi- 
nance passed  by  the  city  should  be  superior  to,  or  take  the  place  of,  the 
general  law  of  the  state  upon  the  same  subject : "  Simpson,  C.  J.,  March  v. 
Commonwealth,  12  B.  Mon.  25,  29,  1851  "Huckster  "  means  a  petty  dealer 
or  retailer  of  small  articles  of  provisions,  &c,  and  an  ordinance  cannot  en- 
large the  ordinary  meaning  so  as  to  embrace  "  any  person  not  a  farmer  or 
butcher  wno  should  sell,  or  offer  for  sale,  any  commodity  not  of  his  own 
manufacture,"  and  subject  such  person  to  a  penalty;  it  not  being,  says 
Ranney,  J.,  ''part  of  the  franchise  of  municipal  corporations  to  change  the 
meaning  of  English  words: "    Mays  v.  Cincinnati,  1  Ohio  St.  268,  272,  1853. 

2  Eex  v.  Miller,  6  Term  R.  277 ;  Rex  v.  Barber  Surgeons,  1  Ld.  Raym.  585. 
It  has  even  been  said  that  the  general  assembly  cannot  authorize  a  municipal 
corporation  to  repeal,  by  ordinance,  a  statute  of  the  state :  Haywood  v. 
Mayor,  &c.  12  Geo.  404,  per  Lumpkin,  J.  But  it  may  provide  that  on  the 
passage  of  an  ordinance  of  a  certain  character,  the  state  law  on  the  subject 
shall  not  be  in  force  in  the  corporate  limits :  State  v.  Binder,  38  Mo.  450. 


278  MUNICIPAL   CORPORATIONC  [CH.  XII. 

§  252.  Ordinance  Need  not  Recite  Authority  to  Pass  it. — It  is 
not  essential  to  the  validity  of  an  ordinance  executing  powers  con- 
ferred by  the  legislature,  that  it  should  state  the  power,  in 
execution  of  which  the  ordinance  is  passed.  If  it  state  no 
particular  power  as  its  basis,  it  will  be  judicially  regarded  as 
emanating  from  that  power  which  would  have  warranted  its 
passage.  If  two  such  powers  exist,  it  may  be  imputed  to 
either,  in  conformity  to  which  its  provisions  and  pre-requisites 
show  that  it  has  been  adopted.  If,  in  these  respects,  in  accor- 
dance with  both,  no  injustice  can  result  in  regarding  it  as  the 
offspring  of  both,  or  either  of  the  powers.1 

§  253.  Must  be  Reasonable  and  Lawful.'- — In  England,  the 
subjects  upon  which  by-laws  may  be  made,  were  not  usually 
specified  in  the  king's  charter,  and  it  became  an  established 
doctrine  of  the  coarts  that  every  corporation  had  the  implied 
or  incidental  right  to  pass  by-laws,  but  this  power  was  accom- 
panied with  these  limitations,  namely,  that  every  by-law  must  be 
reasonable,  not  inconsistent  with  the  charter  of  the  corporation, 
nor  with  any  statute  of  parliament,  nor  with  the  general  prin- 
ciples of  the  common  law  of  the  land,  particularly  those  having 
relation  to  the  liberty  of  the  subject  or  the  rights  of  private 
property.2  In  this  country  the  courts  have  often  affirmed  the 
general  incidental  power  of  municipal  corporations  to  make 
ordinances,  but  have  always  declared  that  ordinances  passed 
in  virtue  of  the  implied  power  must  be  reasonable,  consonant 
with  the  general  powers  and  purposes  of  the  corporation,  and 
not  inconsistent  with  the  laws  or  policy  of  the  state.3 

1  Per  Dorsey,  C.  J.,  Methodist  P.  Church  v.  Baltimore,  6  Gill  (Md.),  391, 
1848.  Under  power  to  pass  an  ordinance  if  found  necessary,  the  necessity  for 
its  enactment  being  implied  from  its  mere  passage  need  not  be  recited  in 
the  ordinance,  nor  averred  in  proceedings  to  enforce  it :  Stuy veysant  v. 
Mayor,  &c.  of  New  York,  7  Cow.  588.  So,  in  England  it  is  not  necessary 
that  the  preamble  to  a  by-law  should  state  the  reasons  for  making  it :  Rex 
v.  Harrison,  3  Burr.  1328. 

2  Sutton's  Hospital  Case,  10  Rep.  31  a;  Feltmakers  v.  Davis,  1  Bos.  &  P. 
98, 100 ;  Norris  «.  Stops,  Hob.  211 ;  Rex  v.  Maidstone,  3  Burr.  1837 ;  Com. 
Dig.  Franch.  P.  10 ;  London  1>.  Vanacre,  1  Ld.  Raym.  496 ;  2  Kyd,  Chap.  IV. 
Sec.  10,  p.  95,  and  cases  cited ;  Bac.  Abr.  Tit.  By-Law. 

3  Mast  be  Reasonable:  Kip  v.  Patterson,  2  Dutch.  (N.  J.)  298;  Commission- 
ers o.  Gas  Co.  12  Pa.  St.  318, 1849 ;  Fisher  v.  Harrisburg,  2  Grant  (Pa.)  Cases, 


CH.  XII.]  REQUISITES    OF   ORDINANCES.  279 

§  254.  Must  not  be  Oppressive. —  The  principle  of  law,  that 
ordinances  passed  under  the  general  authority  to  enact  all  such 
as  may  be  necessary,  must  be  reasonable,  or  they  will  be  void, 
is  well  illustrated  by  a  case  in  Pennsylvania.1  A  municipal 
corporation  passed  two  ordinances  in  relation  to  a  gas  compa- 
ny— a  private  corporation,  with  a  special  charter  authorizing 
the  construction  and  maintenance  of  suitable  gas  works  within 
the  limits  of  the  municipal  corporation,  and  the  use  of  the 
streets  for  the  laying  down  of  pipes.  The  first  ordinance  pro- 
hibited the  gas  company  from  opening  paved  streets  from  De- 
cember to  March  in  each  year,  for  the  purpose  of  laying  gas 
mains.  This  ordinance  the  court  considered  to  be  reasonable, 
in  view  of  the  difficulty  of  repairing  the  paved  streets  during 
the  winter  months.  And  the  other  ordinance  prohibited  the  gas 
company  from  opening  a  paved  street  at  any  time,  for  the  pur- 
pose of  laying  pipes  from  the  main  to  the  opposite  side  of  the 
street.  The  court  say  :'  "  The  effect  of  this  ordinance  is,  to 
compel  the  company  to  construct  two  mains,  one  on  each  side 

291,  1854 ;  Commonwealth  v.  Roberston,  5  Cush.  43S,  1850  ;  Waters  v.  LeecHi, 
3  Ark.  140;  Mayor  o.  Winfield,  8  Humph.  (Tenn.)  767,  1848;  People®. 
Throop,  12  Wend.  183,  186,  1834;  Mayor  v.  Beasley,  1  Humph.  232,  1839 ; 
State  v.  Freeman,  38  N  H.  426,  1859;  Whiten.  Mayor,  &c.  2  Swan  (Tenn.),, 
364,  1852  ;  Pedrick  e.  Bailey,  12  Gray  (Mass.),  161 ;  Dunham  v.  Rochester,  5 
Cow.  462. 

Must  not  conflict  with  the  charter  or  statute,  or  be  repugnant  to  fundamentai 
rights:  Dubois  v.  Augusta,  (health  ordinance)  Dudley  (Geo.),  R.  30j. 
1831;  Williams  v.  Augusta  (powder  ordinances),  4  Geo.  509,  1848;  Ad- 
ams v.  Mayor,  &c.  (liquor  statute),  29  Geo.  56;  Taylor  v.  Griswold,  2  Green 
(N.  J.),  222,  1834 ;  New  Orleans  v.  Philpi  (taxation),  9  La.  An.  44 ;  Perdue  v: 
Ellis  (liquor  traffic),  18  Geo.  586;  Haywood  v.  Mayor,  12  Geo.  404;  Paris  v.. 
Graham  (tax  on  dram-shops),  33  Mo.  94;  St.  Louis  v.  Cafferata,  24  Mo.  94  ~ 
St.  Louis  v.  Benton,  11  Mo.  61 ;  Carr  v.  St.  Louis  (fee  of  officers),  9  Mo.  1845 ; 
Marietta  v.  Fearing  (estray  animals),  i  Ohio,  427,  1831 ;  Collins  v.  Hatch 
(animals  at  large),  18  Ohio,  523,  1849 ;  Mayor,  &c.  of  New  York  v.  Nichols 
(inspection  laws),  4  Hill,  209,  1843  ;  Commonwealth  v.  Turner  (liquor  traf- 
fic), 1  Cush.  493,  1848 ;  Phillips  v.  Wickam,  1  Paige,  590 ;  Howard  v.  Savam- 
nah,T.  Charlt.  R.  173;  Smith  t>.  Knoxville,  3  Head  (Tenn.),  245,  1859; 
Ccmenv.  West  Troy,  43  Barb.  48,  1864;  Pesterfield  v.  Vickers,  3  Coldw.. 
(Tenn.)  205;  City  Council  D.Benjamin,  2  Strob.  (South  Car.)  521;  City  Coun- 
cil v.  Ahrens,  ib.  241 ;  Heisembrittle  Ads.  v.  City  Council,  2  McMul.  (South\ 
Car.)  233 ;  City  Council  v.  Goldsmith,  2  Speer  (South  Car.),  435.  An  ordi- 
nance prohibiting  heavy  awnings  over  sidewalks,  without  consent  of  muni- 
cipal authorities,  is  reasonable  and  valid:  Pedrick  i>.  Bailey,  12 Gray,  161. 

1  Commissioners  of  North  Liberties  v.  Gas  Company,  12  Pa.  St..  318, 1849:. 


280  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

of  the  street,  instead  of  one,  thereby  materially  increasing  the 
expense  to  the  company,  and  consequently  enhancing  the 
price  of  gas  to  the  inhabitants  of  the  district."  And  this  ordi- 
ance  was  declared  to  be  void. 

§  255.  Courts  will  declare  void  ordinance  that  are  oppress- 
ive.i-n  their  character.  Thus,  the  Supreme  Court  of  Tennessee, 
in  a  judgment  which  reflects  credit  upon  the  tribunal  that  pro- 
nounced it,  declared  void  an  ordinance  of  the  city  of  Memphis 
which  ordered  the  arrest,  imprisonment,  and  fine  of  all  free 
negroes  who  might  be  found  out  after  ten  o'clock  at  night, 
within  the  limits  of  the  corporation.1 

§  256.  Must  be  Impartial,  Fair,  and  Gene?'al. — As  it  would 
be  unreasonable  and  unjust  to  make,  under  the  same  circum- 
stances, an  act  done  by  one  person  penal,  and  if  done  by  an- 
other not  so,  ordinances  which  have  this  effect  cannot  be  sus- 
tained. Special  and  unwarranted  discrimination,  or  unjust  or  op- 
pressive interference  in  particular  cases  is  not  to  be  allowed. 
The  powers  vested  in  municipal  corporations  should,  as  far  as 
practicable,  be  exercised  by  ordinances  general  in  their  nature 
and  impartial  in  their  operation.2 

1  Mayor  v.  Winfield,  8  Humph.  (Tenn.)  767,  1848.  The  oppressiveness 
and  inequality,  alleged  to  invalidate  a  by-law,  must  be  made  apparent  to 
the  court:  Mayor  v.  Beasley,  1  Humph.  (Tenn.)  232,  1839;  St.  Louis  v. 
Weber,  44  Mo.  547,  1869.  A  by-law  prohibiting  swine  running  at  large  in  a 
city  is  presumptively  reasonable  as  a  sanitary  or  police  regulation  :  Com- 
monwealth v.  Patch,  97  Mass.  221 ;  Commonwealth  v.  Bean,  14  Gray,  52. 

2  Kuss  e.  Mayor,  &c.  of  New  York,  12  N.  Y.  Leg.  Obs.  38 ;  White  v.  Mayor, 
2  Swan  (Tenn.),  364,  1852;  De  Ben  v.  Gerard,  4  La.  An.  30 ;  Chicago  v. 
Bumpff,  45  111.  90 ;  Mayor,  &c.  of  Hudson  v.  Thorne,  7  Paige,  261.  Or- 
dinances should  be  general,  or,  at  all  events,  not  discriminating  in  their 
operation.  They  may,  it  is  said,  impose  fines  on  persons  violating  their 
provisions  within  the  corporation  or  within  a  designated  district  therein,  or 
in  a  certain  street ;  but  an  ordinance  naming  one  individual  and  directing 
him  to  do  certain  acts  with  respect  to  a  building  alleged  to  be  a  nuisance, 
and  in  default  of  compliance,  imposing  a  fine  of  a  specific  amount  upon 
him,  was  held  to  be  unreasonable,  contrary  to  common  right,  and  void : 
Municipality  v.  Blineau,  3  La.  An.  688,  1848.  Compare  Bozant  v.  Campbell, 
9  Bob.  (La.)  411,  1845,  where,  without  repealing  an  ordinance  prohibiting 
private  hospitals,  the  grant  of  permission  to  one  or  more  individuals  to 
erect  such  hospitals,  was  sustained.  And  see,  also,  Commonwealth  v.  Good- 
rich, 13  Allen,  545,  where  a  municipal  regulation,  limited  in  its  character, 


CH.  XII.J  REQUISITES    OF   ORDINANCES.  281 

§  257.  May  Regulate,  but  not  Restrain,  Trade. —  In  England, 
certain  customs  prevail  in^  prescriptive  corporations  restrictive 
of  freedom  of  trade  and  against  common  right.  Such  customs, 
from  long  usage  and  unknown  origin,  are  regarded  in  the  light 
of  regulations  prescribed  by  a  charter  which  is  supposed  to 
have  existed,  but  is  lost.  Such  customs,  while  not  favored  by 
the  English  courts,  are  yet  held  legal,  but  must  be  incontro- 
vertibly  established.'  But  by  the  Municipal  Corporations  Act 
of  1835  (5  &  6  Will.  IV.  Chap.  LXXVI.  Sec.  14),1  exclusive 
rights  of  trading  have  been  abolished,  and  it  is  enacted,  "that 
notwithstanding  such  custom  or  by-law  [to.the  contrary],  every 
person  in  any  borough  may  keep  any  shop  for  the  sale  of  all 
lawful  wares  and  merchandise,  by  wholesale  or  retail,  and  use 
every  lawful  trade,  occupation,  mystery,  and  handicraft,  for 
hire,  gain,  sale,  or  otherwise,  within  any  borough." 

§  258.  In  this  country  corporations  derive  all  their  powers 
from  legislative  acts  of  comparatively  modern  date,  and  pre- 
scriptive customs,  in  restraint  of  trade  or  against  common 
right,  are  unknown.  ~No  inconsiderable  portion  of  the  cases  in 
the  old  books  in  England  relate  to  these  customs,  their  validi- 
ty and  mode  of  proof,  but  they  are,  in  the  main,  inapplicable 
to  the  present  period  and  to  the  institutions  in  this  country, 
where  freedom  in  the  choice  and  pursuit  of  all  occupations 
never  has  been  denied.  The  inapplicability  of  the  English  de- 
cisions is  noticed  by  Mr.  Justice  Dewey  in  delivering  the  opin- 
ion of  the  Supreme  Court  of  Massachusetts  in  an  important 
case  involving  the  validity  of  an  ordinance  of  the  city  of  Bos- 
ton regulating  the  use  of  hackney  coaches  and  other  vehicles 
within  the  city.  He  observes,  that  "  in  the  arguments  ad- 
dressed to  the  court,  the  question  was  somewhat  discussed  as  to 
the  power  incident  to  municipal  corporations  to  create  by-laws 

was  considered  valid.  In  exercising  its  power  to  require  adjacent  lot  own- 
ers to  make  local  improvements,  the  corporation,  it  has  been  held  in  Ten- 
nessee, must  not  act  in  a  partial  and  oppressive  manner  ;  therefore  it  can- 
not select  particular  individuals  by  name,  and  require  them  to  construct  pave- 
ments or  local  improvements  in  front  of  their  lots,  and  omit  others  in  the 
same  improvement  district,  if  this  be  done  without  good  cause  or  reason  for 
the  distinction :  White  v.  Mayor,  &c.  2  Swan  (Tenn.),  364,  1852. 

1  Ante,  Chap.  III.  p.  51. 

36 


282  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

of  the  character  here  adopted ;  and  a  reference  was  made  to 
various  cases  in  the  English  courts,  where  questions  of  this 
nature  had  arisen.  Upon  examination  of  those  cases,  they 
will  be  found  less  important  and  less  satisfactory  as  guides 
here,  u  asmuch  as  it  is  quite  obvious  that  in  many  of  them, 
and  particularly  those  where  the  ordinance  seemed  most  ques- 
tionable as  not  being  within  the  ordinary  exercise  of  munici- 
pal authority,  the  by-laws  were  sustained  upon  the  ground  of 
ancient  and  long-continued  usage,  ripening  into  a  prescriptive 
right  on  the  part  of  the  municipal  corporation."  But  "  no 
such  groimd,"  he  adds,  "  can  be  urged  here,  and  the  present 
ordinance,  if  sustained  at  all,  must  be  shown  to  be  authorized 
by  the  express  provision  of  the  charter,  or  be  derived  as  an 
incidental  power  resulting  from  its  incorporation  as  a  city,  or 
be  found  in  some  general  or  special  statute."  x 

§  259.  Must  not  Contravene  Common  Right. —  An  ordinance 
cannot  legally  be  made  which  contravenes  a  common  right, 
unless  the  power  to  do  so  be  plainly  conferred  by  legislative 
grant;  and  in  cases  relating  to  such  a  right,  authority  to 
regulate  conferred  upon  towns  of  limited  powers,  has  been 
held  not  necessarily  to  include  the  power  to  prohibit.2  Thus, 
in  Connecticut,  it  is  held  that  every  one  has,  presumptively,  a 

1  Commonwealth  v.  Stodder,  2  Cush.  562,  568,  1848.  See  as  to  English  de- 
cisions, remarks  of  Rhodes,  J.,  in  Herzo  v.  San  Francisco,  33  Cal.  134,145, 
1867.  In  the  case  first  cited  the  court  decided  that  the  business  of  carrying 
persons  for  hire  from  town  to  town,  in  stage  coaches  and  omnibuses,  is  not 
so  far  a  territorial  or  local  occupation  as  will  authorize  one  city,  unless  it 
has  express  and  direct  authority  so  to  do  from  the  legislature,  to  pass  an 
ordinance  requiring  the  inhabitants  of  other  towns  to  obtain  from  it  a 
license  before  exercising  that  employment  in  carrying  persons  to  or  from 
it.  Such  an  ordinance  was  considered  to  be  an  unnecessary  restraint  upon 
business,  and  is  not  binding  upon  citizens  of  other  places.  The  court  does 
not  question  the  right  of  the  city,  by  reasonable  by-laws,  to  require  inhabitants, 
whose  business  is  local  and  carried  on  within  the  city,  to  Obtain  a  license 
before  exercising  certain  employments :  Per  Dewey,  J.,  2  Cush.  562,  575. 

Whenever  a  by-law  seeks  to  alter  a  well  settled  and  fundamental  principle 
of  the  common  law,  or  to  establish  a  rule  interfering  with  the  rights  of  indi- 
viduals or  the  public,  the  power  to  do  so  must  come  from  plain  and  direct 
legislative  enactment :  Taylor  v.  Griswold,  2  Green  (N.  J.),  222,  1834.  Ante, 
p.  101,  Sec.  55,  and  note. 

2  Taylor  v.  Griswold,  2  Green  (N.  J.),  222,  1834. 


CH.  XII.]  REQUISITES   OF   ORDINANCES.  283 

common  law  right  to  fish  in  navigable  rivers,  and  that  though 
every  town  may,  by  statute,  have  the  power  to  make  by-laws 
to  regulate  fisheries  of  clams  and  oysters  within  its  limits,  yet 
this  power  does  not  authorize  a  by-law  prohibiting  all  persons, 
except  its  own  inhabitants,  from  taking  shell-fish  in  a  naviga- 
ble river,  within  the  limits  of  such  town ;  such  a  by-law,  being 
in  contravention  of  a  common  right,  is  void.1 

§  260.  But  there  is,  however,  no  common  right  to  do  that 
which,  by  a  valid  law  or  ordinance,  is  prohibited  ;  and  hence 
courts  will  not  declare  an  authorized  ordinance  void  because 
it  prohibits  what  otherwise  might  lawfully  be  done.  In  dis- 
cussing this  subject,  Mr.  Justice  Moans  illustrates  it  in  this 
wise  :  "If  there  was  no  law  interfering,  the  butcher  might 
kill  his  beeves  and  hogs  in  the  street.  If  the  butcher  could  do 
it  any  man  might,  and  it  might,  therefore,  be  said  to  be  a  com- 
mon right ;  but  when  the  law  prohibited  it,  it  was  no  longer  a 
common  right.  A  legal  restraint  may  be  imposed  on  a  few 
for  the  benefit  of  the  many."  2 

§  261.  Validity  is  for  the  Court,  and  not  the  Jury,  to  Determine. 
— "Whether  an  ordinance  be  reasonable  and  consistent  with 
the  law  or  not,  is  a  question  for  the  court,  and  not  the  jury, 
and  evidence  to  the  latter  on  this  Subject  is  inadmissible.  But 
in  determining  this  question  the  court  will  have  regard  to  all 
the  circumstances  of  the  particular  city  or  corporation,  the 
objects  sought  to  be  attained,  and  the  necessity  which  exists 
for  the  ordinance.  Regulations  proper  for  a  large  and  popu- 
lous city  might  be  absurd  or  oppressive  in  a  small  and  sparsely 
populated  town,  or  in  the  country.  An  unreasonable  by-law 
is  void.3 

1  Hayden  v.  Noyes,  5  Conn.  391,  1824;  Peck  v.  Lockwood,  5  Day  (Conn.), 
22 ;  Willard  v.  Killingworth,  8  Conn.  247.     Ante,  p.  101,  Sec.  55. 

2  Per  Eeans,  J.,  in  City  Council  v.  Ahrens,  4  Strob.  (South  Car.)  Law,  241, 
257,  1850 ;  City  Council  v.  Baptist  Church,  ib.  306,  310 ;  Peoria  v.  Calhoun,  29 
111.  317,  1862 ;  St.  Paul  v.  Coulter,  12  Minn.  41,  1866. 

3  Bacon  Abr.  Tit.  By-Law ;  Commonwealth  v.  Worcester,  3  Pick.  462, 1826 ; 
Paxson  v.  Sweet,  1  Green  (N.  J.),  196,  1832;  Vandine,  Petitioner,  &c.  6 
Pick.  187,  1828 ;  Boston  v.  Shaw,  1  Met.  130, 135,  1840 ;  Austin  v.  Murray,  16 
Pick.  121,  125,  1834 ;  Hudson  v.  Thorne,  7  Paige,  261 ;  Commonwealth  v. 
Stodder,  2  Cush.  562,  575, 1848 ;  Commonwealth  v,  Gas  Company,  12  Pa.  St. 


284  MUNICIPAL    CORPORATIONS.  [CH:  XII. 

§  262.  Legislative  Authority  to  Adopt  Unremovable  Ordinances: 
— Where  the  legislature,  in  terms,  confers  upon  a  municipal 
corporation  the  power  to  pass  ordinances  of  a  specified  and 
defined  character,  if  the  power  thus  delegated  he  riot  in  con- 
flict with  the  constitution,  an  .ordinance  passed  pursuant  there- 
to cannot  he  impeached  as  invalid  because  it  would  have  been 
regarded  as  unreasonable  if  it  had  been  passed  under  the  inci- 
dental power  of  the  corporation,  or  under  a  grant  of  power 
general  in  its  nature.  In  other  ■  words,  what  the  legislature 
distinctly  says  may  be  done  cannot  be  set  aside  by  the  courts 
because  they  may  deem  it  unreasonable.  But  where  the 
power  to  legislate  on  a  given  subject  is  conferred,  but  the 
mode  of  its  exercise  is  not :  prescribed,  then  the  ordinance 
passed  in  pursuance  thereof  must  be  a  reasonable  exercise  of 
the  power,  or  it  will  be  pronounced  invalid.1 

§  263.  Must  be  Consistent  with  Public  Legislative  Policy. — The 
rule  that  a  municipal  corporation  can  pass  no  ordinance  which 
conflicts  with  its  charter  or  any  general  statute  in  force  and 
applicable  to  the  corporation  has  been  before  stated.  Eot  only 
so,  but  it  cannot,  in  virtue  of  its  incidental  power  to  pass  by- 
laws, or  under  any  general  grant  of  that  authority,  adopt  by- 
laws which  infringe  the  spirit  or  are  repugnant  to  the  policy 
of  the  state. as  declared  in  its  general  legislation.  This  princi- 
ple is  well  exemplified  by  a  case  in  Ohio,2  in  which  incorpoi'a- 

318 ;   Dunham  v.  Kochester,  5  Cow.  462,  465,  1826 ;   Buffalo  v.  Webster,  10 
Wend.  100. 

"  Where  the  municipal  legislature  has  authority  to  act,  it  must  be  gov- 
erned, not  by  our  discretion,  but  by  its,  own  ;  and  we  shall  not  be  hasty  in 
convicting  them  of  being  unreasonable  in  the  exercise  of  it : "  Per  Loime, 
J.,  Fisher  v.  Harrisburg,  2  Grant  (Pa.)  Cas.  291,  1854 ;  S.  P.  St.  Louis  o. 
Weber,  44  Mo.  547.  "  The  courts,"  says  Dewey,  J.,  "  doubtless  have  the 
power  to  deny  effect  to  a  by-law  obnoxious  to  the  objection  that  it  is  un- 
reasonable. It  is,  however,  a  power  to  be  cautiously  exercised,"  especially 
where  the  question  is  a  practical  one — for  example,  the  length  of  time 
which  ought  to  be  allowed  to  vehicles  to  remain  in  the  street,  and  as  to 
which  the  city  authorities,  it  is  to  be'  presumed,  can  judge  better  than  the 
court :  Commonwealth  v.  Robertson,  5  Cush.  438,  442,  1850.  See,  also,  Vint- 
ners v.  Passey,  1  Burr.  239 ;  Workingham  v.  Johnson,  Cas.  Temp.  Hardw. 
285 ;  Poulter's  Co.  v.  Phillips,  6  Bing.  (N.  C.)  314 ;  St.  Paul  v.  Coulter,  12 
Minn.  41 ;  Commonwealth  i>.  Patch,  97  Mass.  221. 

1  Peoria  «.  Calhoun,  29  111.  317, 1862;  St' Paul*.  Coulter,  12  Minn. 41,  1866. 

2  Marietta  «.  Fearing,  4  Ohio,  427, 1831. 


OH.  XII.]  REQUISITES   OF    ORDINANCES.  285 

ted  towns  were,  by  statute,  prohibited  from  subjecting  stray 
animals  owned  by  persons  not  residents  of  such  towns  to  their 
corporation  ordinances.  It  was  held  that  an  ordinance  opera- 
ting, not  on  the  animals  but  on  the  non-resident  owner,  in  the 
shape  of  a  penalty,  violated  the  spirit  of  the  statute,  and  was 
void.  So,  in  a  later  case  in  tbe  same  state,  it  was  shown  that 
the  general  policy  of  the  state  was  to  allow  animals  to  run  at 
large ;  and  it  was  ruled  that  a  municipal  corporation  with 
power  to  pass  "  all  by-laws  deemed  necessary  for  the  well  reg- 
ulation, health,  cleanliness,  &c,"  of  the  borough,  and  with 
power  to  "  abate  nuisances,"  had  no  authority  to  pass  a  by-law 
restraining  cattle  from  running  at  large,  such  a  by-law  being 
in  contravention  of  the  general  law  of  the  state.1 

§  264.  The  general  statutes  of  the  state  abolished  the  sys- 
tem of  inspecting  Lay,  and,  in  the  place  of  it,  the  seller  was  re- 
quired to  prepare  the  article  for  market  in  a  particular  man- 
ner at  the  peril  of  being  subjected  to  certain  designated  penal- 
ties. In  other  words,  he  was  at  liberty  to  dispose  of  his  hay 
without  inspection  if  he  chose  to  do  so.  Under  these  circum- 
stances it  was  decided  that  a  city  ordinance  prohibiting  the 

1  Collins  v.  Hatch,  18  Ohio,  523,  1849.  But  in  Illinois  it  has  been  decided 
that  a  town,  authorized  by  its  charter  to  declare  what  should  be  nuisances, 
and  to  provide  for  the  abatement  thereof  by  ordinance,  may  pass  an  ordi- 
nance declaring  swine  running  at  large  within  the  corporation  to  be  nui- 
sances, and  providing  for  the  taking  up  of  the  same,  &c,  and  this  though 
under  the  laws  of  the  state  the  owners  of  stock  may  lawfully  allow  it  to 
run  at  large  upon  the  common — the  court  regarding  the  power  named  in 
the  charter  as  abridging  or  limiting  any  right  of  common  which  might 
otherwise  exist :  Roberts  v.  Ogle,  30  111.  459,  1863.  By-laws  which  contra- 
vene the  policy  of  the  general  statutes  of  the  state,  by  undertaking  to  pun- 
ish acts  which  those  statutes  authorize,  are  void :  Canton  v.  Nist,  9  Ohio  St. 
439,  holding  void  a  by-law,  which,  disregarding  the  statutory  exceptions  of 
cases  of  necessity,  charity,  &c,  prohibited  the  opening  of  shops  for  business 
on  Sunday.  Followed,  Thompson  v.  Mount  Vernon,  11  ib.  088,  adjudging 
an  ordinance  to  be  invalid  because  inconsistent  with  the  liquor  law  of  the 
state.  And  see,  Adams  v.  Mayor,  &c.  29  Geo.  56 ;  Sill  v.  Corning,  1  E.  P. 
Smith  (N.  Y.),  297 ;  Cincinnati  v.  Gynne,  10  Ohio,  290 ;  Wood  v.  Brooklyn, 
14  Barb.  425 ;  Markle  v.  Akron,  14  Ohio,  586 ;  Thomas  v.  Richmond,  U.  S. 
Sup.  Ct.  Dec.  Term,  1871 ,  not  yet  reported.  But  a  corporation  may,  in  some 
cases,  consistently  with  general  law,  further  regulate  by  ordinance  subjects 
already  regulated  by  statute :  Huddleson  v.  Ruffin,  6  Ohio  St.  604 ;  Rogers 
v.  Jones,  1  Wend.  237. 


286  MUNICIPAL   CORPOKATIONC  [CH.  XII. 

sale  of  pressed  hay  without  inspection  was  void,  because  it  con- 
flicted with  the  laws  of  the  state  upon  the  same  subject.1 

Of  the  Signing,  Publication,  and  Recording  of  Ordinances. 

§  265.  Signing,  Publication,  and  Recording. — "When  ordinances 
are  required  to  be  published  before  they  shall  go  into  effect, 
this  requirement  is  essential,  and  the  publication  must  be  in 
the  designated  mode.  Until  such  publication  be  made,  or 
until  they  have  gone  into  operation,  no  penalty  can  be  enforced 
under  them.2  Whether  the  mayor's  signature  is  essential  to 
the  validity  of  an  ordinance  depends  upon  the  charter,  but  un- 
less made  essential,  such  provisions,  where  the  ordinance  is 
duly  enacted,  have  sometimes  been  regarded  as  directory.3 

§  266.  Where  alternate  modes  of  publication  of  a  by-law  are 
allowed  by  statute,  and  the  statute  requires  the  corporation  to 
direct  which  mode  shall  be  adopted,  a  publication  made  by 
order  of  the  clerk,  without  direction  from,  or  selection  of,  the 
mode  having  been  made  by  the  corporation,  is  not  valid.4 

1  Mayor,  &c.  of  New  York  «.  Nicholls,  4  Hill  (N.  Y.),  209,  1843.  Compare, 
Mayor  v.  Hyatt,  3  E.  D.  Smith,  156 ;  Rogers  v.  Jones,  1  Wend.  287. 

2  Barneft  v.  Newark,  28  111.  62,  1862 ;  Conboy  v.  Iowa  City,  2  Iowa,  90, 
1855  ;  Higley  v.  Bunce,  10  Conn.  567,  1835.  Failure  to  publish  ordinance 
held  not  to  affect  validity  of  bonds  issued  under  a  subsequent  act  authoriz- 
ing the  corporation  to  incur  a  debt :  Amey  v.  Allegheny  City,  24  How.  364  ; 
Clark  v.  Janesville,  10  Wis.  136,  1859 ;  State  v.  Newark,  1  Vroom  (N.  J.), 
303 ;  People  o.  San  Francisco,  27  Cal.  655. 

'  Blanchardu.  Bissell,  11  Ohio  St.  96,  101,  103,  1860;  Strikers.  Kelly,  7 
Hill,  9;  Elmendorf  v.  Mayor  of  New  York,  25  Wend.  693.  See,  however, 
Conboy  v.  Iowa  City,  supra;  State  v.  Newark,  1  Dutch.  399 ;  State  v.  Hud- 
son, 5  Dutch.  475 ;  Kepner  v.  Commonwealth,  40  Pa.  St.  124 ;  State  v.  Jersey 
City,  1  "Vroom,  93  ;  Creighton  v.  Manson,  27  Cal.  613  ;  Taylor  o.  Palmer,  31 
Cal.  241 ;  Dey  i:  Jersey  City,  19  N.  J.  Bq.  412 ;  Gas  Company  v.  San  Francis- 
co, 6  Cal.  190.  See  ante,  chapter  on  Corporate  Meetings.  Signing  minutes 
not  equivalent  to  signing  resolution,  when  latter  is  essential :  Grahams. 
Carondelet,  33  Mo.  262,  1862.  When  to  be  signed :  Miles  v.  Bough,  3  Gale 
&  D.  119 ;  Inglis  v.  Eailway  Company,  16  Eng.  Law  &  Eq.  55.  A  legislative 
provision  requiring  the  presiding  officer  of  the  council  to  si,gn  all  ordinances, 
is  directory  in  its  nature.  If  regularly  passed,  an  ordinance  is  valid,  though 
not  thus  authenticated.  It  is,  of  course,  competent  for  the  legislature  to 
make  the  signature  an  essential  condition  of  validity '  Blanchard  v.  Bissell, 
11  Ohio  St.  96, 101,  103,  1860.  See  State  v.  Newark,  1  Dutch  (N.  J.)  399.  Ante, 
Sec.  209,  note. 

*  Higbys.  Bunce  (restraining  cattle),  10  Conn.  435;  S.  C.  ib.  567,  1835. 
The  language  of  the  statute  was  this :    "  Such  by-laws  shall  not  be  in  force 


CH.  XII.]        SIGNING,  PUBLICATION,  4C.    OF   ORDINANCES.  287 

§  267.  A  municipal  charter  required  every  ordinance  to  be 
published  for  the  space  of  twenty  days  in  at  least  one  newspaper 
before  it  should  go  into  effect ;  and  it  was  held  that  an  ordi- 
nance would  go  into  force  in  twenty  days  after  its  publication 
in  the  first  number  of  the  paper ;  that  twenty  days  need  not 
intervene  between  the  first  and  last,  insertions ;  that  it  is  clear- 
ly sufficient  if  it  be  published  in  each  number  of  the  paper 
issued  within  the  twenty  days,  and  probably  sufficient  if  there 
is  but  one  insertion,  twenty  days  after  which  the  ordinance 
will  go  into  effect.1 

§  268.  A  charter  provided  that  no  ordinance  should  be  in 
force  until  published  in  some  newspaper  of  the  place,  and 
also  declared  that  ordinances  should  be  sufficiently  proved  in 
any  court  (among  other  modes)  by  a  printed  copy  taken  from 
the  newspaper  or  printed  pamphlet  in  which  the  same  had 
been  published,  provided  the  same  purports  to  have  been  done 
by  authority  of  the  corporation.  Under  this  provision,  the 
production  of  a  newspaper  published  in  the  town,  containing 
what  appears  as  an  ordinance,  with  a  caption,  "  Published  by 
Authority,"  duly  signed,  is  evidence  of  the  existence  and  adop- 
tion of  the  ordinance.2 

§  269.  A  provision  in  a  statute  changing  an  incorporated 
town  into  a  city,  that  the  existing  town  ordinances  shall  remain 
in  force  provided  they  shall  be  recorded  within  four  months 
thereafter,  is  merely  directory,  and  such  ordinances  are  valid 

until  published  four  weeks  in  a  newspaper  printed  in  such  town,  or  in  the 
town  nearest  to  such  town  in  which  a  newspaper  is  printed,  or  in  some 
other  newspaper  generally  circulated  in  the  town  where  such  by-law  is 
made,  as  the  town  shall  direct :  "  Rev.  1821,  p.  458.  Held,  that  the  town  must 
point  out  one  of  the  three  descriptions  of  newspapers  in  which  the  by-law 
should  be  printed :  lb. 

1  Hoboken  v.  Gear,  3  Dutch.  (N.  J.)  265,  1859.  Where  a  city  is  required" 
to  promulgate  its  ordinances,  it  is -sufficient  to  publish  them  in  the  news- 
paper in  which  the  ordinances  are  usually  published,  though  there  may  be 
other  newspapers  within  the  city :  Truchelut  v.  City  Council,  1  Nott  &  McC. 
(South  Car.)  227,  1818. 

1  Block  v.  Jacksonville,  36  111.  301,  1865.  See  Pendegast  v.  Peru,  20  111. 
51.  Proof  of  publication  under  special  charter  provision  :  President,  &c.  v. 
O'Malley,  18  111.  407. 


288  MUNICIPAL    CORPORATIONS.  [CII.  XII. 

though  not  recorded  within  the  designated  period.1  Nor  is  it 
a  valid  objection  to  a  municipal  ordinance  that  it  is  recorded 
in  print  (being  printed  and  pasted  in  the  proper  book),  and 
not  in  manuscript.2 

Of  the  Power  to  Impose  Fines,  Penalties,  and  Forfeitures. 

§  270.  Common  Law  Principles  Adopted. —  That  by-laws  or 
ordinances  may  not  be  inoperative  or  useless,  it  is  necessary 
that  some  penalty  should  be  annexed  to  the  breach  of  them ; 
and  it  is  settled  in  England,  in  accordance  with  the  principles 
of  Magna  Charta,  that  without  the  express  sanction  of  parlia- 
ment no  by-law  can  be  enforced  by  disfranchisement  of  the 
offender,  or  by  his  imprisonment,  or  by  forfeiture  of  his  goods 
or  property.  Under  its  incidental  power  to  pass  by-laws,  a  cor- 
poration may,  in  England,  annex  pecuniary  penalties  of  a  cer- 
tain fixed  and  reasonable  character,  but  without  express 
authority  given  by  a  statute,  the  only  penalty  it  can  prescribe 
is  a  pecuniary  one,  usually  called  a  fine.  Therefore,  in  the 
absence  of  a  statute  or  special  custom  justifying  it,  a  by-law 
cannot  give  a  power  of  distress  and  sale  of  the  goods  of  the 
offender,  since  such  a  power  is  contrary  to  the  common  law. 
And  where  a  corporation  is  empowered  to  enforce  its  by-laws, 
in  a  special  manner,  as  by  fine,  it  is  limited  to  the  manner  pre- 
scribed. These  safe,  salutary,  and  enlightened  principles  of 
law  have  been  recognized  by  the  American  courts  as  applica- 
ble to  the  ordinances  of  our  municipal  corporations,  as  the 
cases  to  which  reference  will  be  made  fully  show. 

§  271.  By  the  Municipal  Corporations  Ad,  the  subject  of  by- 
laws and  their  penalties  is  regulated.  It  is  declared,  "  that  it 
shall  be  lawful  for  the  council  of  any  borough  to  make  such 
by-laws  as  shall  to  them  seem  meet  for  the  good  rule  and  gov- 
ernment of  the  borough,  and  for  the  prevention  and  suppres- 
sion of  all  such  nuisances  as  are  not  already  punishable  in  a 

1  Trustees  of  Academy  v.  Erie,  31  Pa.  St.  515,  1858 ;  Amey  v.  Allegheny 
City,  24  How.  364.  See  chapter  on  Corporate  Records  and  Documents, 
ante. 

2  Ewbanks  v.  Ashley,  36  111.  177,  1864.  Parol  evidence  of  resolutions  is 
competent  where  the  charter  does  not  require  them  to  be  recorded,  and  no 
record  thereof  has  been  made :  Darlington  v.  Commonwealth,  41  Pa.  St.  68. 


CH.  XII.]         POWER   TO    IMPOSE    FINES,    PENALTIES,    AC.  289 

summary  manner  by  virtue  of  an  act  in  force  throughout 
such  borough,  and  to  appoint,  by  such  by-laws,  such  fines  as  they 
shall  deem  necessary  for  the  prevention  and  suppression  of 
such  offences ;  provided  that  no  fine,  to  be  so  appointed,  shall 
exceed  the  sum  of  five  pounds,  and  that  no  such  by-law  shall  be 
made,  unless  at  least  two-thirds  of  the  whole  number  of  the 
council  shall  be  present."  1  Respecting  the  fines  mentioned  in 
this  section,  Mr.  Rawlinson  suggests  the  inquiry  whether  it  be 
necessary  or  not  that  the  exact  amount  of  each  fine  should  be 
mentioned  in  the  by-law,  the  limit,  to-wit,  5/.  being  fixed  by 
the  act.  It  is  contended,  he  observes,  by  some  persons,  that 
the  amount  may  be  left  open,  and  that  a  by-law  enacting  that 
the  offence  shall  be  punishable  by  a  fine  not  less  than  10s.  and 
not  exceeding  bl.  would  be  valid.  This  would  be  convenient, 
but  some  have  doubted  whether  such  a  by-law  would  be  cer- 
tain, and  whether  the  corporation  could  enforce  it  by  the  usual 
'common  law  remedies,  viz:  by  an  action  of  debt  or  assumpsit. 
It  is  believed,  he  adds,  that  by-laws  have  invariably  fixed  the 
exact  sum;  but,  nevertheless,  it  would  seem  that  a  fine  of  bl., 
with  power  to  the  mayor  or  other  officer  to  reduce  it  to  any 
sum  not  exceeding  a  specified  amount,  would  be  good.2  In 
this  country,  the  practice,  if  not  general,  is  at  least  not  uncom- 
mon, to  prescribe  limits  to  fines,  and  allow  them  to  be  imposed 
within  those  limits,  at  the  discretion  of  the  magistrate  or  court 
intrusted  with  jurisdiction  to  hear  complaints  for  breaches  of 
municipal  ordinances. 

§  272.  Implied  Power  to  Annex  Pecuniary  Penalties. —  Since 
an  ordinance  or  by-law  without  a  penalty  would  be  nugatory,3 
municipal  corporations  have  an  implied  power  to  provide  for 
their  enforcement  by  reasonable  and  proper  fines  against  those 

1  5  &  6  Will.  IV.  Chap.  LXXVI.  See.  90.    Ante,  p.  51,  and  note. 
'  Rawlinson  on  Corp.  (5th  ed.)  165,  166,  note.    Infra,  Sec.  275. 

s  State  v.  Cleveland,  3  Eh.  Is.  117.  But  no  penalty  can  be  enforced  for 
an  illegal  exaction :  Mayor-  v.  Avenue  Eailroad  Company,  33  N.  Y.  42 ;  32 
ib.  261.  "  Municipal  fine,"  as  used  in  the  constitution  of  California,  means 
a  fine  imposed  by  local  laws  of  particular  places,  such  as  incorporated 
towns  and  cities,  and  not  a  fine  imposed  by  the  general  laws  of  the  state  : 
People  v.  Johnson,  30  Cal.  98, 1866. 
37 


290  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

who  break  them.1  So  the  right  to  make  by-laws  gives  to  the 
corporation,  without  any  express  grant  of  power,  the  incidental 
right  to  enforce  them  by  reasonable  pecuniary  penalties. 
"What  is  reasonable  depends  upon  the  nature  of  the  offence  and 
the  circumstances.2 

§  273.  Charter  Mode  Governs. —  Where  the  charter  or  or- 
ganic act  prescribes  the  manner  in  which  by-laws  are  to 
be  enforced,  or  the  sanctions  or  punishments  to  be  annexed 
to  their  violation,  this  constructively  operates  to  negative  the 
right  of  the  corporation  to  proceed  in  any  other  manner,  or  to 
inflict  any  other  punishment.  Thus,  in  the  leading  case3  on 
this  subject,  the  charter  prescribed  in  what  manner  by-laws 
should  be  enforced,  namely,  hj  fine  and  amerciament,  or  either, 
and  it  was  decided  that  the  corporation  was  precluded  from 
declaring  a  forfeiture  of  property,  or  from  inflicting  any  other 
punishment,  and  the  docrine  of  this  case  has  been  everywhere 
followed  in  the  courts  of  this  country. 

1  Fisher  v.  Harrisburg,  2  Grant  (Pa.)  Cas.  291,  1854;  Barter  v.  Common- 
wealth, 3  Pa.  (Pen.  &  W.)  253.  The  amount  must  be  reasonable  :  Zylstra  v. 
Charleston,  1  Bay  (South  Car.),  382.  The  penalty,  says  Mr.  Willcock,  must 
be  imposed  on  the  person  who  violates  the  by-law.  Thus,  if  goods  be  sold 
by  an  unauthorized  person  within  the  city,  the  penalty  must  be  imposed 
on  .the  seller,  and  not  on  the  buyer,  for  how  can  he  distinguish  between 
those  authorized  to  sell  and  those  who  are  not :  Willc.  on  Corp.  154,  pi.  369, 
370;  Caddenv.  Estwick,  1  Salk.  143,  192;  S.  C.  6  Mod.  124 ;  and  see,  also, 
Fazakerley  v.  Wiltshire,  1  Stra.  469.  The  rule  stated  above,  as  to  the  per- 
son on  whom  penalties  must  be  imposed,  may  be  extended  or  enlarged  by 
express  provisions  of  the  organic  act  of  the  corporation. 

2  Mayor,  &c.  of  Mobile  v.  Yuille,  3  Ala.  137,  1841.  A  penalty,  although 
small,  fixed  on  every  stroke  of  the  hammer  which  an  unauthorized  per- 
son uses  in  his  trade  of  a  goldsmith,  is  unreasonable :  Willc.  154,  pi.  368. 
Same  principle:  Mayor,  &c.  of  New  York  v.  Ordrenan,  12  Johns.  122,  1815. 

3  Kirk  v.  Nowill,  1  Term  R.  118,  124,  1786,  per  Mansfield  and  BuUer;  fol- 
lowed in  Hart  v.  Mayor,  &c.  9  Wend.  571,  588,  606,  1832 ;  Cotter  v.  Doty,  5 
Ohio,  394, 1832;  Heise  v.  Town  Council,  6  Rich.  (South  Car.)  Law,  404, 1853 ; 
Miles  v.  Chamberlain,  17  Wis.  446, 1863.  In  Hart  r.  Mayor,  supra,  it  was  ac- 
cordingly decided  that  a  corporation  having  authority  "  to  inflict  penalties 
for  the  violation  of  any  by-law,  not  exceeding  $25  for  any  one  offence," 
could  not  pass  a  by-law  subjecting  property  to  seizure,  and  sale,  or  forfeiting 
it,  even  though  it  was  used  contrary  to  the  by-law  which  was  in  other 
respects  valid,  the  remedy  for  enforcing  their  by-laws  having  been  speci- 
fied :  9  Wend.  571.    Infra,  Sec.  282. 

Where  specific  modes  of  procedure  and  penalties  are  prescribed  against 


CH.  XII.]         POWER    TO    IMPOSE    PINES,    PENALTIES,    AC.  291 

§  274.  A  charter  of  a  city  specifically  enumerated  various 
powers  which  the  council  was  expressly  authorized  to  enforce 
by  a  penalty  not  exceeding  one  hundred  dollars  for  their  vio- 
lation ;  and  the  same  charter  empowered  the  council  to  pre- 
vent and  remove  encroachments  upon  the  streets,  hut  was 
silent  as  to  the  imposition  of  penalties  for  a  violation  of  its 
provisions.  The  council  passed  an  ordinance  imposing  a  con- 
tinuing penalty  often  dollars  a  day  for  every  day's  failure  to 
remove  an  encroachment,  after  notice ;  and  it  was  held,  and 
properly  so,  that  it  possessed  no  power  to  impose  such  a  pen- 
alty, but  the  decision  was  put  upon  the  ground  that  the  spe- 
cific enumeration  of  the  powers  which  might  be  rendered 
effectual  by  penal  provisions  was  an  implied  exclusion  of  the 
right  to  impose  any  penalties  whatever  in  other  cases.1 

§  275.  Penalty  may  be  Within  Fixed  Limits. —  A  municipal 
corporation,  with  power  to  pass  by-laws  and  to  affix  penalties, 
may,  if  not  prohibited  by  the  charter,  or  if  the  penalty  is  not 
fixed  by  the  charter,  make  it  discretionary,  within  fixed  limits,  for 
example,  "  not  exceeding  fifty  dollars."  This  enables  the  tri- 
bunal to  adjust  the  penalty  to  the  circumstances  of  the  partic- 
ular  case,   and   is  just  and  reasonable.     The  older  English 

persons  failing  to  take  out  license  for  keeping  drinking  houses,  as  fines, 
suits,  and  prosecutions,  a  municipal  corporation,  in  the  absence  of  express 
grant,  has  no  right  to  close  the  doors  of  a  drinking  house  summarily,  be- 
cause the  keeper  has  failed  to  take  out  a  license :  Bolte  v.  New  Orleans,  10 
La.  An.  321,  1855.  That  a  municipal  corporation  cannot  annex  other  or  great- 
er penalties  than  those  authorized  in  its  organic  act ;  that  power  to  punish 
by  "fine"  is  exclusive,  and  that  it  is  not  competent  to  ordain  a  forfeiture  in 
addition,  see  Schroder  v.  City  Council,  2  Const.  Rep.  (South  Car.)  726  ; 
S.  C.  3  Brev.  533,  1815 ;  McMullen  v.  City  Council,  1  Bay  (South  Car.^,  46  ; 
Zylstra  v.  Charleston,  ib.  382  ;  New  Orleans  «.  Costello,  14  La.  An.  37 ;  Co- 
lumbia v.  Hunt,  5  Rich.  550, 558 ;  Kennedy  v.  Sowden,  1  McMul.  (South  Car.) 
328 ;  compare  Crosby  v.  Warren,  1  Rich.  Law,  385.  An  ordinance  treated 
as  wholly  void  because  it  fixed  the  minimum  fine  for  an  offence  at  five  dol- 
lars when  the  law  required  it  to  be  three  dollars :  Petersburg  v.  Metzker, 
21  111.  205,  1859. 

1  Grand  Rapids  v.  Hughes,  15  Mich.  54,  1866.  Whether  there  is  such  an 
implied  exclusion  must  depend  in  each  case  upon  the  supposed  intention 
of  the  legislature,  to  be  gathered  from  a  survey  of  the  whole  charter.  The 
authority  to  adopt  an  ordinance  implies  the  right  to  enforce  it  by  proper 
pecuniary  penalties,  and  this  right  exists  unless  excluded  by  other  provis- 
ions of  the  charter. 


292  MUNICIPAL   CORPOEATIONE  [CH.  XII. 

authorities,  so  far  as  they  hold  such  a  by-law  void  for  uncer- 
tainty, are  regarded  as  not  sound  in  principle,  and  ought  not 
to  be  followed.1 

§  276.  Single  Offence  Gannot  be  Made  Double. —  As  the  power 
to  pass  ordinances  and  to  punish  for  their,  violation  must  be 
reasonably  exercised,  the  corporation  cannot  multiply  one 
offence  into  many,  and  punish  for  each.  Thus,  where  an 
authorized  ordinance  prohibited  "  any  person  from  cutting 
down  and  making  use  of  cedar  and  other  trees,"  within  a 
specified  locality,  a  complaint,  charging  the  defendant  "  with 
having  cut  down  a  cedar  tree  at  various  times,  and  that  he 
continued  to  do  so,  from  time  to  time,  until  he  had  committed 
one  hundred  violations  of  the  ordinance,  by  cutting  down  one 
hundred  cedar  trees,"  was  held  to  set  forth  but  a  single  offence, 
for,  said  the  court,  "  the  matter  charged  is  a  trespass  with  a 
nontiniuindo,  which,  in  law,  is  but  one  offence,  and  it  may  well 
be  that  every  tree  cut  by  the  defendant  was  cut  on  one  day, 
and,  under  the  ordinance,  the  cutting  of  more  trees  than  one, 
at  one  time,  would  be  but  one  offence."2 

§  277.  Where  there  is  a  limitation  upon  the  corporation  as 
to  the  amount  of  penalties  to  be  imposed .  for  the  infraction  of 
by-laws,  they  cannot  exceed  the  limit  directly,  nor  can  they  do 
so  indirectly  by  multiplying  what  is,  in  substance,  one  offence, 
into  several,  or  subdividing  one  transaction  or  violation  into  a 
number  of  offences,  and  annexing  a  penalty  to  each.3  But  where 

1  Mayor,  &c.  v.  Phelps,  27  Ala.  55,  1855,  overruling,  on  this  point,  Mayor, 
&c.  v.  Yuille,  3  ib.  137 ;  compare,  Commissioners  v.  Harris,  7  Jones  (Law), 
281.  See,  also,  Piper  v.  Chappell,  14  Mees.  &  W.  623,  649,  1845 ;  Butchers 
Co.  v.  Bullock,  3  B.  &  Pul.  434 ;  Grant  on  Corp.  84.  A  by-law  fixing  one 
penalty  for  the  first  offence  and  a  larger  for  the  second,  and  a  still  larger 
one  for  every  subsequent  offence,  does  not  appear  to  be  bad  for  uncertain- 
ty :  Butchers  Co.  v.  Bullock,  supra.  Where  the  penalty  is  fixed  by  by-law,  it 
can  only  be  changed  by  the  same  authority  which  affixed  it :  Bex  v.  Ash- 
well,  12  East,  29  ;  Scarning  v.  Conger,  3  Leon.  7;  Moore,  75 ;  Bendl.  159  ; 
Davis  v.  Lowden,  Carth.  29.  A  penalty  fixed  either  by  the  charter  or  by- 
law is  essential :  Bowman  v.  St.  John,  47  111.  337 ;  Ashton  v.  Ellsworth,  48 
111.  299.    Supra,  Sees.  271,  272. 

2  State  v.  Moultiieville,  Rich.  (South Car.)  Law,  158, 1839. 

3  Mayor,  &c.  of  New  York  «.  Ordrenan,  12  Johns.  122,  1815  (penalty  for 
illegally  keeping  powder),  citing  and  approving  opinion  of  Lord  Mansfield 


CH.  XII.]         POWER   TO    IMPOSE    FINES,    PENALTIES,    AC.  293 

each  offence  is  distinct,  and  the  punishment  for  each  is.  within 
the  power  of  the  corporation  to  impose,  the  punishment  is  not 
made  illegal,  though  the  separate  fines  in  the  aggregate  exceed 
the  limit  allowed  by  the  charter,  and  are  imposed  by  the  same 
magistrate  or  tribunal  at  one  sitting.1 

§  278.  By  its  charter,  the  power  of  a  city  corporation  to 
impose  fines  for  breaches  of  its  ordinances  was  limited  to  one 
hundred  dollars.  By  the  charter  the  city  had  also  the  power 
to  regulate  the  inspection  of  flour,  and  passed  an  ordinance  by 
which  any  person  selling  flour  without  inspection  should  be 
fined  "  five  dollars  for  each  barrel  so  sold."  It  was  held  that 
this  ordinance,  as  to  the  penalty,  was  valid  so  far  as  to  author- 
ize a  fine  not  exceeding  one  hundred  dollar  s ;  that  if  a  single 
sale  exceeded  twenty  barrels  the  fine  could  be  but  one  hundred 
dollars,  while,  if  it  was  less  than  twenty  barrels,  the  fine  would 
be  five  dollars  on  each  barrel.  The  court  observed,  that  a 
recovery  on  a  single  transaction  where  more  than  twenty  bar- 
rels were  sold,  would  bar  any  future  proceeding  for  the  bal- 
ance.2 

§  279.  Power  of  Forfeiture  must  be  Expressly  Conferred) —  A 
corporation  under  a  general  power  to  make  by-laws  cannot 
make  a  by-law  ordaining  a  forfeiture  of  property.  To  warrant 
the  exercise  of  such  an  extraordinary  authority  by  a  local  and 
limited  jurisdiction,  the  rule  is  reasonably  adopted  that  such 
authority  must  be  expressly  conferred  by  the  legislature.3    And 

in  Crups  v.  Darden,  Cowp.  640.  See,  also,  Hart  v.  Mayor,  &c.  9  Wend.  571, 
588,  606,  1832;  Zylstra  v.  Charleston,  1  Bay  (South  Car.),  382,  1794;  vide 
Stokes  ».  Corporation  of  New  York,  14  Wend.  87. 

1  Heise  v.  Town  Council,  6  Rich.  (South  Car.)  Law,  404  (fines  for  violating 
liquor  ordinance) ;  compare,  State  v.  Town  Council  of  Moultrieville,  supra. 

2  Chicago  v.  Quimby,  38  111.  274,  1865. 

3  Kirk  v.  Nowill,  1  Term  R.  118,  124,  per  Mansfield  and  Buller,  followed  by 
Court  of  Errors  of  New  York,  in  Hart  v.  Mayor,  &c.  of  Albany,  9  Wend.  571, 
588,  per  Sutherland,  J. ;  p.  605,  per  Edmonds,  Senator ;  2  Kyd  on  Corp.  110 ; 
Willcock  on  Municipal  Corporations,  180,  pi.  449;  Angell  &  Ames  on 
Corp.  Sec.  360 ;  Cotter  v.  Doty,  5  Ohio,  394,  1832 ;  White  v.  Tallman,  2 
Dutch.  ;N.  J.)  67,  1856 ;  Phillips  v.  Allen,  41  Pa.  St.  481.  In  further  illustra- 
tion, see  Mayor,  &c.  v.  Ordrenan,  12  Johns.  122 ;  Phillips  v.  Allen,  41  Pa.  St. 
481 ;   Dunham  v.  Rochester,  5  Cowen,  462, 1826  ;   Baxter  v.  Commonwealth, 


294  MUNICIPAL    CORPORATIONS.  [CH.  XII. 

even  if  the  power  to  declare  a  forfeiture  is  co-nferred,  still  no 
person  can,  by  ordinance,  be  deprived  of  his  property  by  for- 
feiture without  notice  or  without  legal  investigation  or  adjudi- 
cation ;  an  ordinance  in  violation  of  this  principle  is  void,  as 
"contrary  to  the  genius  of  our  laws  and  institutions."  l  In 
England  the  power  of  municipal  corporations  to  impose  a  for- 
feiture for  offences  created  by  ordinances  or  by-laws,  has  been, 
in  many  cases,  sanctioned  by  usage,  without  any  express  power 
in  the  charter  to  impose  the  forfeiture.  But  in  this  country, 
inasmuch  as  corporations  derive  all  their  power  from  charter 
or  act  of  the  legislature,  the  right  to  inflict  a  forfeiture  must 
be  plainly  given,  and  cannot  be  derived  from  usage.2 

§  280.  Power  to  Fine  does  not  include  Power  to  Forfeit. — How 
strictly  the  courts  hold  that  municipal  corporations  cannot 
pass  by-laws  ordaining  a  forfeiture  is  strikingly  illustrated  by 
the  case  of  Heise  v.  The  Town  Council  of  Columbia.  The 
town  council  had  power  to  enforce  obedience  to  their  ordi- 
nances "  by  fine,  nut  exceeding  fifty  dollars."  Special  authori- 
ty was  given  to  municipal  corporations  to  grant  licenses  to  re- 
tail liquor.  The  council  passed  an  ordinance  relating  to  this 
subject,  the  penalty  for  violating  which  was  a  "  fine  of  not 
more  than  fifty  dollars  for  each  offence,  and  also  a  forfeiture  of 
the  license."  It  was  held  that  the  license  which  was  granted  and 
paid  for  was,  essentially,  'property  ;  that  the  council  could  only 
impose  fines,  and  that  it  had  no  power  to  ordain  a  forfeiture  of 
the  license,  there  being  (in  the  opinion  of  the  court)  no  differ- 
ence between  the  forfeiture  of  a  license  and  of  goods  and 
chattels.8 

§281.  Judicial  Procedure  Necessary  in  some  Instances. —  An 
ordinance  of  the  city  of  New  Orleans  authorizing,  without  any 
prior  judicial  proceedings,   a  sale,  under  the  orders    of  the 

3  Pa.  (Pen.  &  W.)  253 ;  Bergen  v.  Clarkson,  I  Halst.  (N.  J.)  352  ;  Taylor  v. 
Carondelet  (forfeiture  of  lease),  22  Mo.  10*),  112 ;  Mayor,  &c.  of  Mobile  o. 
Yuille,  3  Ala.  137,  1841. 

1  Cotter  v.  Doty,  5  Ohio,  394,  398  ;    Bosebaugh  v.  Saffin,  10  Ohio,  32, 1840. 

2  Taylor  v.  Carondelet,  22  Mo.  105, 112;  Kirk  a.  Nowill,  ITermE.  118;  Ad- 
ley  v.  Eeves,  1  Maule  &  Sel.  60, 

3  Heise  v.  Town  Council,  &c.  6  Eich.  (South  Car.)  Law,  404,  1853. 


CH.  XII.]         POWEK   TO    IMPOSE    FINES,    PENALTIES,    &G.  295 

mayor,  of  all  property  suffered  to  remain  on  the  levee  beyond 
a  specified  period,  is  invalid,  since  it  makes  the  corporation 
judges  and  parties  in  the  same  cause,  and  enforces  a  forfeiture 
and  divests  the  owner  of  his  property  without  a  trial  in  due 
course  of  law.  Such  a  power  is  not  similar  to  that  exercised 
by  a  corporation  in  removing  nuisances,  as  that  power  arises 
from  necessity  and  ceases  with  that  necessity.  It  would  be 
competent  for  the  corporation  to  ordain  that  the  property 
should  be  removed  at  the  expense  of  the  proprietor,  and  to  re- 
cover these  expenses  and  any  fine  which  might  be  imposed  by 
judicial  proceedings.1 

§  282.  Forfeiture,  of  Animals  at  Large. —  The  right  to  de- 
nounce a  forfeiture  against  animals  running  at  large  in  a  town 
or  city  contrary  to  the  provisions  of  ordinances  forbidding  it, 
must  be  plainly  conferred  or  it  will  not  be -held  to  exist.  This 
is  in  accordance  with  the  rule  of  the  English  courts,  that  a 
statute  will  not  be  taken  to  invest,  by  implication,  a  municipal 
corporation  with  the  extraordinary  powers  of  forfeiting  the 
property  of  the  subject,  and  that,  if  it  be  intended  that  any 
such  power  shall  be  given,  it  must  be  by  express  words  to  that 
effect.  The  cases  agree  in  holding  that  when  the  power  to 
denounce  a  forfeiture  against  such  animals  is  given,  there 
should  be  either  notice,  actual  or  constructive,  or  prior  legal 
proceedings.  The  view  of  the  courts  will  be  best  understood 
by  referring  to  some  of  the  cases  upon  the  subject.  In  Missis- 
sippi, an  ordinance  authorizing  the  seizure  and  sale  of  hogs 
running  at  large,  without  notice  or  trial,  or  opportunity  for 
trial,  and  providing  that  one-half  of  the  proceeds  of  the  sales 
should  go  to  the  hospital  and  the  other  half  to  the  city  mar- 

1  Lanfear  v.  Mayor,  4  La.  97,  1831.  Compare  with  Guillotte  v.  New  Or- 
leans, 12  La.  An.  432,  1857,  in  which  it  was  held  that  an  ordinance  provid- 
ing a  forfeiture,  for  the  use  of  the  city  workhouse,  of  bread  illegally  baked 
in  violation  of  an  authorized  by-law  of  the  corporation,  is  not  contrary  to 
a  constitutional  provision  declaring  that  vested  rights  shall  not  be  divested 
unless  for  purposes  of  public  utility  and  for  adequate  compensation  pre- 
viously made.  It  may  be  observed,  that  the  court,  without  any  special  dis- 
cussion, assumed  that  power  "to  regulate  everything  which  relates  to 
bakers  "  gave  authority  to  denounce  a  forfeiture  of  bread  baked  contrary 
to  the  provisions  of  the  ordinance  of  the  city :  See,  on  this  point,  Mayor, 
&c.  of  Mobile  v.  Yuille,  3  Ala.  137,  1841. 


296  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

shal,  was  held  to  be  in  violation  of  the  constitutional  provision 
that  no  person  "  can  be  deprived  of  his  property  but  by  due 
course  of  law,"  and  securing  right  to  a  jury  trial.1 

§  283.  In  a  similar  case  in  Ohio,  Grimke,  J.,  delivering  the 
opinion  of  the  court,  observes :  "  The  ordinance  commands 
the  marshal  to  seize  and  impound  the  hogs,  and  then,  without 
any  reserve,  without  any  notice,  by  means  of  which  the  owner 
might  be  able  to  exculpate  himself,  directs  them  to  be  sold  and 
the  proceeds  placed  in  the  city  treasury.  Such  an  ordinance 
is  as  contrary  to  the  spirit  of  the  charter  (Cincinnati)  as  it  is 
alien  from  the  general  genius  of  our  institutions."  2 

§  284.  In  North  Carolina  the  general  principle  was  de- 
clared that  an  ordinance  of  an  incorporated  town  which 
authorizes  the  property  of  one  man  to  be  taken  from  him  and 
given  to  another,  without  any  notice  to  the  owner  or  trial  of  his 
rights,  was  unlawful.  The  town  authorities,  under  power 
given  to  make  ordinances  for  the  removal  of  nuisances  and  for 
the  good  government  of  the  town,  passed  an  ordinance  to  this 
effect :  "  That  every  hog  at  large  in  the  said  town  shall  be 
taken  up  and  penned,  and  advertised  to  be  sold  on  the  third 
day,  and  unless  the  owner  should  pay  the  charges  (specified  in 
the  ordinance)  for  taking  up  and  keeping  such  hog,  and  a  sale 
is  effected,  the  money  arising  therefrom,  after  paying  the 
charges,  shall  be  paid  over  to  the  owner  of  the  said  hog."  The 
validity  of  this  ordinance  was  drawn  in  question,  and  two 
points  were  ruled  by  the  Supreme  Court :  1.  That  the  ordi- 
nance was  reasonable,  and  the  corporation,  under  the  power 
above  referred  to,  had  authority  to  pass  it.     2.  That  it  sufli- 

1  Donovan  v.  Vicksburg,  29  Miss.  (7  Cush.)  247,  1855.  Power  to  impose 
penalties  on  the  owners  of  animals  running  at  large  excludes,  by  implica- 
tion, the  power  to  enforce  a  by-law  upon  the  subject  in  any  other  way,  as, 
for  example,  by  a  sale  of  the  animals  found  at  large :  Miles  v.  Chamberlain, 
]7  Wis.  446, 1863.    Supra,  Sees.  272,  273. 

2  Rosebaugh  v.  Saffin,  10  Ohio,  32,  37,  1840.  However  it  may  be  wh'en 
the  power  to  forfeit  without  notice  or  prior  legal  proceedings  is  explicitly 
conferred,  it  is  clear  that  the  power,  unless  plainly  and  expressly  given,  can- 
not be  exercised  without  such  notice  and  previous  adjudication  ;  but  with 
these  the  remedy  may,  if  needful,  be  "  prompt  and  strong :  "  Cincinnati  v. 
Buckingham,  10  Ohio,  257,  262,  per  Lane,  C.  J. 


CH.  XII.]         POWER   TO   IMPOSE   FINES,    PENALTIES,    4C.  297 

ciently  provided  for  notice  to  the  owner  by  the  impounding  of 
the  animal  and  the  three  days  public  advertisement,  and  that 
personal  notice  was  not  necessary.1  In  a  subsequent  case  in 
the  same  court  a  similar  ordinance  was  sustained.  It  was 
objected  that  it  was  invalid,  because  it  provided  for  no  judicial 
decision  condemning  the  property  to  be  sold.  This  objection 
the  court  regarded  as  insufficient,  "  since  the  owner  may,  if  he 
chooses,"  have  a  full  investigation  of  the  case  by  bringing  an 
action  of  replevin,  as  in  any  other  case  of  distress."2 

§  285.  In  South  Carolina  it  has  been  held,  that  under 
authority  to  enforce  by-laws  by  fine,  an  ordinance,  otherwise 
legal,  which  authorized  the  marshal  to  kill  hogs  running  at 
large,  contrary  to  the  ordinance,  and  appropriate  them  to  his 
own  use,  was  void.3 

§  286.  Equity  will  not  Ordinarily  Believe  against  Valid  For- 
feitures.—  A  forfeiture  imposed  by  a  municipal   corporation, 

1  Shaw  v.  Kennedy  (North  Car.),  Term  R.  158, 1817  ;  Helen  v.  Noe,  3  Ire. 
(Law)  493,  1843. 

2  Whitfield  v.  Longest,  6  Ire.  (Law)  268,  1846.  In  Iowa  a  similar  ordi- 
nance was  sustained :  Gooselink  v.  Campbell,  4  Iowa,  296,  1856 ;  Contra, 
Willis  v.  Legris,  45  111.  289,  1867;  Bullock  v.  Geomble,  ib.  218;  Poppen  v. 
Holmes,  44  111.  360.  But  see  HarU.  Mayor,  Ac.  of  Albany,  9  Wend.  571, 
1832  ;  White  v.  Tallman,  2  Dutch.  (N.  J.)  67,  1856 ;  Philips  v.  Allen,  41  Pa. 
St.  481.  Power  must  be  strictly  pursued  or  the  sale  will  be  void,  and  the 
officer  a  trespasser :  Clark  v.  Lewis,  35  111.  417.  Sale  is  void  where  two  an- 
imals, belonging  to  different  owners,  are  sold  at  once  :  Ib.    Ante,  Sec.  101. 

3  McRae  v.  O'Lain,  cited  Kennedy  v.  Sowden,  1  McMullen  (South  Car.), 
Law,  328.  But  authority  to  impose  "fines  and  penalties  "  authorizes, a  fine 
against  those  who  violate  the  ordinance  forbidding  hogs  running  at  large, 
and  the  seizure,  impounding,  and  sale  (upon  notice)  of  the  animals  to  pay 
the  fine,  whether  they  belong  to  residents  or  non-residents :  Kennedy  v. 
Sowden,  supra ;  S.  P.  Crosby  v.  Warren,  1  Rich.  (South  Car.)  Law,  385, 1845, 
Wardlaw,  J.,  dissenting ;  McKee  v.  McKee,  8  B.  Mon.  433,  1848.  But  it 
seems  doubtful,  upon  the  principles  adopted  in  the  construction  of  powers 
of  this  character,  whether  authority  to  impose  fines  and  penalties  extends 
any  further  than  to  the  imposition  of  pecuniary  fines  and  penalties :  See 
Mayor  of  Mobile  v.  Yuille,  3  Ala.  137 ;  White  v.  Tallman,  2  Dutch.  (N.  J.) 
67,  1856.  The  power  to  forfeit,  like  the  power  to  tax,  should  be  given  either 
expressly,  or,  at  all  events,  by  necessary  implication.  And  it  has  been  held, 
that  it  cannot  be  implied  from  the  power  "  to  impose  reasonable  fines,"  and 
to  cause  "  all  such  fines  and  all  such  forfeitures  and  penalties  as  may  be  in- 
curred under  the  laws  and  ordinances  of  the  corporation  to  be  assessed, 
levied,  and  collected : "  Cotter  v.  Doty,  5  Ohio,  395, 1832 . 

38 


298  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

under  legislative  authority,  for  a  violation  of  a  valid  by-law, 
and  inflicted  as  a  penalty  for  such  violation,  cannot  be  relieved 
against  in  equity,  unless,  perhaps,  where  peculiar  circum- 
stances furnish  grounds  for  equitable  interposition,  the  general 
doctrine  being  that  equity  may  relieve  against  forfeitures  de- 
clared by  contract,  but  not  against  those  expressly  declared  or 
authorized  by  statute.1 

§  287.  Power  to  Enforce  by  Imprisonment  must  be  Expressly 
Given. —  In  this  country  it  is  not  unusual  to  provide,  in  the 
organic  act  of  municipal  corporations,  that,  if  fines  for  viola- 
tions of  by-laws  or  ordinances  are  not  paid,  the  offender  may 
be  committed  to  prison  for  a  limited  period.  And,  in  respect 
to  some  offences  public  in  their  character,  the  power  to  im- 
prison in  the  first  instance  is  often  conferred.2  It  is  scarcely 
necessary  to  add,  that  unless  the  authority  be  plainly  given  it 
does  not  exist,  and  when  given,  before  it  can  be  exercised 
there  must  be  a  judicial  ascertainment  by  a  competent  tribunal 
or  magistrate  of  the  guilt  of  the  party.3 

On  Whom  Ordinances  are  Binding,  and  Who  must  Notice  them. 

§  288.  Who  Bound. —  In  England  the  by-laws  of  a  munici- 
pal corporation  bind  not  only  the  members,  but,  if  they  are 
general  in  their  nature  and  purposes,  and  not  limited  to  any 

1  Taylor  v.  Carondelet,  22  Mo.  105  (forfeiture  clause  in  lease)  ;  Peachy  v. 
Somerset,  1  Str.  447  ;  Gorman  v.  Low,  2  Edw.  Ch.  324 ;   Keating  v.  Sparrow, 

1  Ball  &  Beat.  367 ;  State  v.  Railroad  Company,  3  How.  (U.  S.)  534. 

2  Barter  v.  Commonwealth,  3  Pa.  (Pen.  &  W.)  253,  1831 ;  New  Orleans  v, 
Costello,  14  La.  An.  37 ;  Burlington  v.  Kellar,  18  Iowa,  59 ;  London  v.  Wood, 
12  Mod.  686 ;  Bab  v.  Clerke,  Moore,  411 ;  Clarke's  Case,  5  Co.  64  ;  1  Roll. 
Abr.  364 ;  Com.  Dig.  By-Law  E,  1 ;  Chilton  v.  Railway  Company,  16  M.  & 
W.  212;  King  v.  Merchant  Tailors'  Company,  2  Lev.  200. 

3  Ex  parte  Burnett,  30  Ala.  461,  1857.  Fines  for  the  violation  of  ordi- 
nances, held  under  special  charter  provisions,  collectible  by  commitment 
of  the  person  or  by  fieri  facias:  Huddleson  v.  Ruffln,  6  Ohio  St.  604. 
Authority  to  enforce  penalties  for  violations  of  ordinances  by  ''  distress  and 
sale  "  of  property  must  be  expressly  or  plainly  granted :    White  v.  Tallman, 

2  Dutch.  (N.  J.)  67,  1856 ;  Bergen  v.  Clarkson,  1  Halst.  (N.  J.)  67.  And  in 
England,  likewise,  such  a  power  cannot  be  conferred  by  the  crown,  and  can 
only  exist  by  authority  of  parliament  or  a  special  custom :  Clerke  v.  Tucker, 

3  Lev.  281 ;  S.  C.  2  Vent.  183 ;  Lee  v.  Walis,  1  Keny.  Cas.  295  ;  Sayer,  263 ; 
Adley  v.  Reeves,  2  Maule  &  Sel.  60  ;  Willc.  179  ;  Glover,  311. 


CH.  XII.]  ON    WHOM    ORDINANCES   ARE   BINDING.  299 

particular  class  or  description,  but  intended  to  extend  to  all 
persons  coming  within  the  local  jurisdiction  of  the  corporation, 
they  hind  all,  whether  members  or-  strangers,  and  all  must  take 
notice  of  them  at  their  peril.  And  by-laws  made  by  a  munici- 
pal corporation  with  respect  to  a  liberty  or  franchise  granted 
them,  with  local  jurisdiction  beyond  the  limits  of  the  munici- 
pality, are  as  binding  upon  persons  going  into  the  liberty  as 
the  by-laws  of  the  city  upon  those  who  come  within  its  walls.1 

§  289.  So,  also,  in  this  country  it  is  settled  that  valid  ordi- 
nances bind  not  only  the  inhabitants  of  the  corporation,  but 
also  strangers  or  non-residents  coming  within  its  limits.  These, 
for  the  time  being,  are  regarded  as  inhabitants,  and  liable  in 
the  same  manner  for  violations  of  ordinances.2  So  far  is  plain. 
But  suppose  a  person  living  without  the  limits  of  the  corpora- 
tion suffers  his  cattle  or  property  to  stray  into  it  and  violate  its 
ordinances.  Here  two  questions  may  arise :  1st.  Can  such 
property,  being  within  the  corporation,  be  dealt  with  the  same 
as  if  it  belonged  to  an  inhabitant  of  the  corporation  ?  It  is 
held  that  it  can.3  2d.  Can  such  non-resident  owner  be  made 
amenable  personally  to  a  penalty  to  the  corporation  ?  In  other 
words,  has  a  corporation  power,  unless  expressly  conferred,  to 
provide  for  collecting  a  penalty  from  a  non-resident  who  suf- 

1  Willc.  105,  107 ;  Glover,  289,  290 ;  London  v.  Vanacker,  1  Ld.  Raym. 
498;  Salk.  142;  Pierce  ».  Bartram,  Cowp.  270;  Fazakerley  v.  Weltshire,  1 
Stra.  462 ;  Kirk  v.  Nowill,  1  Term  R.  118 ;  Butcher  Co.  ».  Mercy,  1  H.  Bl. 
370.  Do  not  bind  beyond  limits  of  authorized  jurisdiction :  See  3  Mod. 
158;  T.  Jones,  144;  2  Brownl.  177;  Hob.  211;  Hutt.  6;  11  Rep.  53;  Godb. 
252.  An  ordinance  passed  in  1834,  prohibiting  the  erection  of  "  stables, 
&c.  in  the  interior  of  the  city  of  New  Orleans,  or  any  of  its  incorporated 
suburbs,''  held  not  to  extend  to  the  city  of  Lafayette,  subsequently  added, 
by  act  of  the  legislature,  to  the  city  of  New  Orleans:  New  Orleans  v.  Ander- 
son, 9  La.  An.  323,  1854. 

2  Heland  v.  Lowell,  3  Allen,  407,  1862 ;  Whitfield  v.  Longest,  6  Ire.  (Law) 
268, 1846 ;  approving,  Pierce  v.  Bartram,  Cowp.  269.  See,  also,  Buffalo  v. 
Webster,  10  Wend.  99 ;  Commissioners  of  Wilmington  v.  Roby,  8  Ire.  (Law) 
250 ;  Commissioners  of  Plymouth  v.  Pettijohn,  4  Dev.  (Law)  591 ;  Strauss  v. 
Pontiac,  40  111.  301,  1866;  City  Council  v.  Pepper,  1  Rich.  (S.  Car.)  Law,  364, 
1845 ;  City  Council  v.  King,  4  McCord  (S.  Car.),  487 ;  Marietta  v.  Fearing,  4 
Ohio,  427,  1831 ;  Dodge  v.  Gridley,  10  Ohio,  173 ;  Horney  v.  Sloan,  1  Smith 
(Ind.),  136;  Kennedy  v.  Sowden,  1  McMullen,  323. 

3  Whitfield  v.  Longest,  6  Iredell  (Law),  268,  ±846 ;  Gosselink  v.  Campbell, 
4  Iowa,  296,  300,  1856;  Reed  v.  People,  1  Park.  Cr.  Rep.  481. 


300  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

fers  his  property  to  violate  an  ordinance,  but  who  himself  was, 
at  the  time,  without  the  corporate  limits  ?  This  remains,  per- 
haps, to  be  settled,  though  it  is  certain  that  ordinances  will  not 
be  construed  to  extend  to  persons  living  without  the  corpora- 
tion and  not  being  within  it,  unless  such  an  intention  plainly 
appears.1  ^ 

§  290.  Notice.  —  All  persons  upon  whom  ordinances  are 
binding  are  bound  to  take  notice  of  them.2  But  where  a  party 
is  liable  to  a  penalty  if  he  does  not  do  a  given  act  upon  notice, 
a  newspaper  notice  is  not  sufficient,  unless  that  mode  is  pointed 
out  by  the  law,  or  general  power  is  given  to  the  corporation, 
embracing  within  it  the  authority  to  prescribe  the  kind  and 
manner  of  notice.3 

Ordinances  Relating  to  the  Licensing,  Regulation,  and  Taxing  of 
Amusements  and  Occupations,  Including  the  Sale  of  Intoxicating 
Liquors. 

§  291.  Nature  of  License  Power. —  Charters  not  unfrequently 
confer  upon  the  corporation  the  power  "to  license  and  regu- 
late," or  to  "license,  regulate,  and  tax,"  certain  avocations 

1  Plymouth  v.  Pettijohn,  4  Dev.  (Law)  591.  Inability  to  punish  non-resident 
owner  criminally  in  respect  to  property  within  corporate  limits,  see  Reed  v. 
People,  1  Park.  Cr.  Rep.  481.  Power  "  to  make  such  prudential  rules  and 
regulations  as  may  seem  necessary  for  the  better  improving  of  the  common 
lands  of  a  town,"  &c.  extends  only  to  regulations  as  between. those  who 
have  the  right  to  enjoy  them  in  common,  but  does  not  confer  the  power  of 
imposing  a  penalty  for  trespasses  by  strangers;  for  such  acts  the  town  must 
pursue  its  common  law  remedy :  Foster  v.  Rhoads,  19  Johns.  (N.  Y.)  191, 
1821.  See,  also,  People  v.  Works,  7  Wend.  486 ;  Holladay  ».  Marsh,  3  Wend. 
142.  Ordinances  cannot  have  an  extra  territorial  effect,  unless  the  power  be 
plainly  conferred  upon  the  corporation :  Strauss  v.  Pontiac  (liquor  ordi- 
nance), 40  111.  301,  1866 ;  Gosselink  v.  Campbell,  4  Iowa,  296.  Whether  a 
party  resides  within  the  limits  embraced  by  an  ordinance,  is  a  question  of  fact: 
Board  v.  Pooley,  11  La.  An.  743 ;  Police  Jury  v.  Villaviabo,  12  ib.  788 ;  New 
Orleans  v.  Boudu,  14  ib.  303. 

2  Palmyra  v.  Morton  (sidewalk  ordinance),  25  Mo.  593,  1860;  Buffalo  v. 
Webster,  10  Wend.  99,  1833.  See  Reed  v.  People,  1  Park.  Cr.  R-p.  481 ; 
City  of  London  v.  Vanacre,  12  Mod.  270,  272 ;  Glover  on  Corp.  207,  290. 
Post,  Chap.  XIX. 

8  Keckely  v.  Commissioners  of  Roads,  4  McCord  (S.  Car.),  257, 1828. 


CH.  XII.]         ORDINANCES    LICENSING   AMUSEMENTS,    AC.  301 

and  employments,  and  to  "tax  and  restrain"  or  "prohibit" 
exhibitions,  shows,  places  of  amusement,  and  the  like ;  and 
unless  there  is  some  specific  limitation  on  the  authority  of  the 
1  egislature  in  this  respect,  such  provisions  are  constitutional.1 
Concerning  useful  trades  and  employments,  a  distinction  is 
to  be  observed  between  the  power  to  "license"  and  the  power 
to  "tax."  In  such  cases  the  former  right,  unless  such  appears 
to  have  been  the  legislative  intent,  does  not  give  the  authority 
to  prohibit,  or  to  use  the  license  as  a  mode  of  taxation,  with  a 
view  to  revenue,  but  a  reasonable  fee  for  the  license  and  the 
labor  attending  its  issue  may  be  charged.  Respecting  amuse- 
ments, exbibitions,  &c,  the  authority  of  the  corporation  under 
the  power  to  license  has  been  regarded  as  greater  than  when 

1  City  v.  Clutch,  6  Iowa,  546,  1858.  In  Mayor,  &c.  of  Mobile  v.  Yuille,  3 
Ala.  137,  1841,  it  was  determined  that  there  was  nothing  in  the  constitu- 
tion of  the  state  which  would  invalidate  a  grant  of  powei  to  a  municipal 
corporation  •'  to  license  bakers,  and  regulate  the  weight  and  price  of  bread,  and 
to  prohibit  the  baking,  for  sale,  except  by  those  licensed."  Such  a  grant  of 
power  does  not  unlawfully  interfere  with  the  right  of  citizens  to  pursue 
their  lawful  occupations.  In  the  City  of  Boston  v.  Schaffer,  9  Pick.  415, 
1830,  it  was  decided  that  it  is  competent  for  the  legislature  to  grant  a  city 
or  town  power  to  require  the  payment  of  money  as  the  condition  of  exer- 
cising particular  employments,  e.  g.  giving  theatrical  or  other  exhibitions. 
This  is  not  in  the  nature  of  a  tax,  which  must  be  general,  but  of  an  excise 
on  special  vocations.  Approved,  Cincinnati  v.  Bryson,  15  Ohio,  625 ;  New 
Orleans  v.  Turpin  (auctioneers),  13  La.  An.  56,  1858 ;  Municipality  v.  Dubois 
(livery  stable  keeper),  10  ib.  56;  Charity  Hospital  v.  Stickney,  2  La.  An.  550; 
Slaughter  v.  Commonwealth,  13  Gratt.  (Va.)  967 ;  Carrol  v.  Mayor,  &c.  12 
Ala.  173 ;  Merriam  v.  New  Orleans,  14  La.  An.  318 ;  Wynne  v.  Wright,  1 
Dev.  &  B.  (N.  Car.)  Law,  19 ;  The  Mayor,  &c.  v.  Hartridge,  8  Geo.  23 ;  Cin- 
cinnati v.  Bryson,  15  Ohio,  625,  dissenting  opinion  of  Burchard,  J. ;  Collins 
v.  Louisville,  3  B.  Mon.  (Ky.)  133 ;  The  Germania  v.  State,  7  Md.  1 ;  The 
State  v.  Roberts,  11  Gill  &  Johns.  (Md.)  506 ;  Sears  v.  West,  1  Murph.  (N. 
Car.)  291 ;  People  v.  Thurber,  13  111.  557 ;  Savannah  v.  Charlton,  36  Geo.  460, 
1867.    See  chapter  on  Taxation,- post. 

These  cases  show  some  diversity  of  opinion  as  to  the  right  to  tax  particu- 
lar employments  as  distinguished  from  property,  but  the  correct  view,  it  is 
submitted,  is  this :  Unless  specially  restrained  by  the  constitution,  the  leg- 
islature may  provide  for  the  taxing  of  any  occupation  or  trade ;  and  may 
confer  this  power  upon  municipal  corporations.  But  such  taxes  are  apt  to 
be  inequitable  and  the  principle  not  free  from  danger  of  great  abuse.  Hence 
ordinances  of  this  character  ought  not  to  be  sustained,  unless  the  authority 
be  expressly  or  otherwise  unequivocally  conferred. 


302  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

the  same  word  is  employed  as  to  trades  and  occupations.1 
"Words  of  this  character,  however,  do  not  always  have  exactly 
the  same  meaning,  and  the  intention  of  the  legislature  in  using 
them  must  often  be  gathered  from  the  whole  charter  and  the 
general  legislation  of  the  state  respecting  the  subject  matter. 

§  292.  In  harmony  with  the  foregoing  principles,  it  has 
been  held  that,  under  authority  "to  license  and  regulate" 
draymen,  &c,  a  municipal  corporation  may,  by  ordinance, 
require  a  license  to  be  first  taken  out,  and  charge  a  reasonable 
sum  for  issuing  the  same  and  keeping  the  necessary  record, 
but  cannot,  by  virtue  of  this  authority,  without  more,  levy  a 
tax  upon  the  occupation  itself;  and,  under  the  power  to  regu- 
late, it  may  make  proper  police  regulations  as  to  the  mode  in 
which  the  employment  shall  be  exercised.2 

1  Ash  v.  People,  11  Mich.  347  ;  ante,  p.  125,  Sec.  79 ;  Freeholders  ».  Barber, 
2Halst.  64;  Carroll  «.  Tuscaloosa,  12  Ala.  (N.  S.)  173;  Greensboro  ».  Mullins, 
13  ib.  341 ;  State  v.  Roberts,  11  Gill  &  Johns.  506 ;  City  Council  v.  Ahrens,  4 
Strob.  241 ;  Kip  v.  Patterson,  2  Dutch.  298 ;  Portland  o.  O'Neill,  1  Ire.  218 ; 
Bennett  v.  Birmingham,  31  Pa.  St.  15 ;  Commonwealth  v.  Stodder,  2  Cush. 
562 ;  Day  i>.  Green,  4  Cush.  433 ;  Dunham  v.  Rochester,  5  Cow.  462 ;  Law* 
renceburg  ».  West,  16  Ind.  337;  Cheney  v.  Shelby  ville,  18  Ind.  84;  Bennett 
v.  People,  30  111.  389 ;  East  St.  Louis  v.  Wehrung,  46  111. ;  Savannah  v.  Charl- 
ton, 36  Geo.  460.    Post,  Chap.  XIX. 

Distinction  between  taxation  and  police  regulation  well  stated  by  Depue,  J., 
in  State  v.  Hoboken,  33  N.  J.  Law,  280,  1869.  See,  also,  Kip  v.  Patterson,  2 
Dutch.  (N.  J.)  298 ;  Mayor  v.  Avenue  Railroad  Company,  32  N.  Y.  261 ;  33 
ib.  42,  distinguished  and  questioned  in  Frankford  Railway  Company  v. 
Philadelphia,  58  Pa.  St.  119,  1868 ;  Johnson  v.  Philadelphia,  60  Pa.  St.  445 ; 
Freeholders  v.  Barber,  2  Halst.  (N.  J.)  64.  Difference  between  tax  and  a 
license  to  exercise  particular  callings  upon  making  pecuniary  compensation 
for  the  privilege :  People  e.  Thurber,  13  111.  557 ;  Mount  Carmel  v.  Wabash 
Co.  50  111.  69.  Smith  v.  City  of  Madison,  7  Ind.  86,  1855,  so  far  as  it  holds 
that  authority  "to  suppress  and  restrain"  bowling  saloons  confers  the  power 
to  license  and  tax  them,  cannot,  as  it  seems  to  us,  be  sustained.  Mayor, 
&c.  v.  Beasley,  1  Humph.  (Tenn.)  240,  holds  that  power  in  a  charter  to 
regulate  and  restrain  tippling  houses  did  not  confer  the  power  to  tax  them. 

2  Cincinnati  *.  Bryson,  15  Ohio,  625,  1846.  As  to  correctness  of  applica- 
tion of  the  principle  of  law  to  the  facts,  quxre.  Consult,  in  connection  with 
the  above  case,  Mays  v.  Cincinnati,  1  Ohio  St.  268,  1853  ;  with  which  com- 
pare, Cincinnati  v.  Buckingham,  10  Ohio,  261 ;  and  see  cases  cited  supra, 
Sec.  291.  An  act  to  regulate  and  license  the  keeping  of  dogs,  was  regarded  as 
an  exercise  of  the  police,  and  not  the  taxing  power  of  the  state,  and  not  to 
be  within  the  constitutional  provision  requiring  uniformity  of  taxation : 


CH.  XII.]         ORDINANCES   LICENSING   AMUSEMENTS,    AC.  303 

§  293.  So  authority  to  a  city  to  adopt  rules  and  orders  "  for 
the  due  regulation  of  omnibuses,  stages,  &c,"  was  held  not 
to  authorize  the  adoption  of  an  ordinance  requiring  the 
payment  of  a  tax,  or  duty,  on  each  carriage  licensed,  varying 
from  one  to  twenty  dollars,  according  to  the  different  kinds  of 
carriages,  and  the  stands  occupied.  This  was  regarded  as  a 
direct  tax  upon  the  vehicle  used,  or  its  owner,  and  not  neces- 
sary to  secure  the  objects  of  the  above  grant  of  power  to  the 
city.1      So  where  under  an  act  authorizing  the  trustees  of  a 

Carter  v.  Dow,  16  Wis.  298,  1862 ;  Tenney  v.  Lenz,  ib.  566.  In  the  case  last 
cited,  Paine,  J.,  observes :  "  We  cannot  assent  to  the  position  that,  if  the 
sum  required  for  a  license  exceeds  the  expense  of  issuing  it,  the  act  tran- 
scends the  licensing  power,  and  imposes  a  tax.  By  such  a  theory  the  police 
power  would  be  shorn  of  all  efficiency.  *  *  *  We  have  no  doubt,  there- 
fore, that  the  legislature  may,  in  regulating  any  matter  that  is  a  proper  sub- 
ject of  the  police  power,  impose  such  sums  for  licenses  as  will  operate  as 
partial  restrictions  upon  the  business,  or  upon  the  keeping  of  the  particular 
kinds  of  property  regulated."  See,  also,  Eire  Department  v.  Helfenstein,  16 
Iowa,  123,  1870.    Post,  Chap.  XIX. 

In  Ash  v.  People,  11  Mich.  347,  1863,  it  appeared  that,  by  its  charter, 
authority  was  given  to  a  city  to  erect,  establish,  and  regulate  markets  and 
market  places,  and  to  license  and  regulate  butchers  and  shop-keepers  at  any 
other  place  in  the  city,  for  the  sale  of  meats,  &c.  and  to  authorize  the  mayor 
to  grant  such  licenses  and  to  prescribe  the  sum  of  money  to  be  paid  into  the 
treasury  of  the  city  therefor.  An  ordinance  prohibiting  the  keeping  of 
meat  shops  outside  of  the  public  markets  without  a  license,  and  requiring 
the  payment  of  a  license  fee  of  five  dollars,  was  sustained,  although  the 
amount  exceeded  the  expense  of  making  and  registering  the  license.  The 
court  denied  that  the  fee  demanded  was  a  tax,  and  regarded  it  as  but  a  rea- 
sonable compensation  for  the  additional  expense  of  municipal  supervision 
over  the  business  at  the  place  licensed.  A  ferry  license  fee  of  fifty  dollars 
was  held  not  to  be  a  tax,  within  the  meaning  of  the  term,  as  used  in  the 
constitution  of  Michigan  and  the  charter  of  the  city  of  Detroit :  Chilvers  v. 
People,  11  Mich.  43,  1862 ;  ante,  p.  125,  Sec.  79.  "The  power  to  license  and 
regulate  carries  with  it  the  right  to  require  the  payment  of  a  [reasonable] 
sum  in  consideration  of  the  license:"  Per  Wright,  J.,  in  State  *.  Herod,  29 
Wis.  136.    Ante,  p.  135,  Sec.  93. 

1  Commonwealth  ».  Stodder,  2  Cush.  562,  572,  1848 ;  distinguished  from 
Boston  v.  Schaffer,  9  Pick.  415,  as  to  licences  for  theatrical  exhibitions. 
Power  to  the  city  council  of  Charleston  to  make,  inter  alia,  "  such  ordi- 
nances respecting  streets,  carriages,  wagons,  carts,  drays,  &c.  as  to  them 
shall  seem  expedient  and  necessary,"  was  held  to  authorize  an  ordinance 
requiring  all  persons  who  drive  for  hire  any  cart,  dray,  wagon,  or  omnibus, 
within  the  city,  to  take  out  a  license,  and  to  require  the  vehicle  to  be  num- 
bered, or  on  failure  to  do  so  to  pay  a  fine  :  City  Council  v.  Pepper,  1  Rich. 
(South  Car.)  Law,  364,  1845.     A  similar  ordinance,  and  imposing  annual 


304  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

village  corporation  to  make  ordinances  "  in  relation  to  huck- 
sters, and  for  the  good  government  of  the  village,"  it  was  held 
that  an  ordinance  was  unauthorized  which  required  that  huck- 
sters should,  before  exercising  their,  employment,  take  a  li- 
cense, and  be  taxed  a  sum  varying  from  five  to  thirty  dollars.1 

§  294.  On  the  other  hand  the  power  to  "  license,  regulate, 
and  restrain  amusements,"  it  was  admitted  or  taken  for  granted 
would  authorize  an  ordinance  taxing,  or  requiring  exhibitors 
to  pay  a  specific  sum  for  the  privilege,  this  being  considered 
as  a  means  of  regulating  and  restraining  them.2  So  a  grant 
of  power  to  a  city  or  town  to  license  exhibitions  lton  such 
terms  and  conditions  as  to  it  may  seem  just  and  reasonable," 
authorizes  it  to  exact  money  for  the  license ;  it  is  not  confined 
to  regulating  time  and  place,  establishing  police  regula- 
tions, &c.3 

§  295.  Right  must  be  plainly  Conferred.  —  Even  the  right  to 
license  must  be  plainly  conferred,  or  it  will  not  be  held  to  ex- 
ist. Thus,  power  to  make  "  by-laws  relative  to  hucksters,  gro- 
cers, and  victualling  shops,"  does  not  authorize  the  corporation 
to  exact  a  license  from  persons  carrying  on  such  business.  Nor 
does  the  general  power  to  pass  prudential  by-laws,   not  in- 

charge  on  each  car  of  a  street  railway  company,  was  sustained  as  a  police  reg- 
ulation :  Frankford  Railway  Company  v.  Philadelphia,  58  Pa.  St.  119, 1868  ; 
S.  P.  Johnson  v.  Philadelphia,  60  Pa.  St.  445 :  Contra,  Mayor  v.  Avenue  Rail- 
road Company,  32  N.  Y.  261.  Power  to  license,  tax,  and  regulate  horse 
railroads,  hackney  carriages,  &c.  does  not  extend  to  taxation  of  private  vehi- 
cles used  by  a  merchant  or  manufacturer :  St.  Louis  v.  Grove,  46  Mo.  574, 
1870. 

1  Dunham  u.  Rochester,  5  Cowen,  462,  466,  1826.  See  further,  index, 
Markets. 

2  Hodges  ».  Mayor,  2  Humph.  (Tenn.)  61.  See  also,  Carter  v.  Dow,  16 
Wis.  299 ;  Tenny  ».  Lenz,  ib.  567.  Speaking  of  this  subject,  Mr.  Justice 
Cooley  expresses  it  as  his  opinion  that,  where  the  right  to  impose  license 
fees  to  operate  as  a  restriction  upon  the  business  or  thing  licensed  can  be 
fairly  deduced  from  the  taxing  power  conferred  upon  the  corporation,  it 
should  be  done,  rather  than  to  derive  the  right  solely  from  the  power  to 
regulate :  Const.  Lim.  202.  note. 

3  Boston  v.  Schaffer,  9  Pick.  415,  1830 ;  distinguished  from  Common- 
wealth v.  Stodder,  2  Cush.  562,  572, 1848. 


CH.  XII.J         ORDINANCES   LICENSING   AMUSEMENTS,    AC.  305 

consistent  with  the  laws  of  the  state,  confer  the  authority  to 
demand  a  license.1 

§  296.  Monopolies  invalid.  —  The  power  to  license  and  regu- 
late a  lawful  and  necessary  business  will  not  give  the  corpo- 
ration the  power  to  make  contracts  which  create,  or  tend  to 
create,  a  monopoly.2 

1  Dunham  «.  Rochester,  5  Cow.  462,  1826 ;  Commonwealth  v.  Stodder,  2 
Cush.  562,  1848 ;  Mays  v.  Cincinnati,  1  Ohio  St.  268,  1853.  By-laws  requir- 
ing a  license,  which  may  be  so  heavy  as  to  amount  to  a  prohibition,  were 
justly  considered  to  be  in  restraint  of  trade,  which  the  general  law  favors, 
and  in  this  case  were  adjudged  void,  "both  for  want  of  jurisdiction"  in 
the  corporation  to  pass  them,  and  for  want  of  "  conformity  to  the  general 
law : "  16.  2  Cow.  466.  Whsre  the  charter  gave  the  corporation  the  power  "to 
license  bakers,  and  to  prohibit  sales  of  bread  except  by  those  licensed,"  the 
court  doubted  whether  under  this,  aside  from  the  taxing  power  of  the  cor- 
poration, an  ordinance  could  be  supported  which  required  twenty  dollars 
to  be  paid  by  the  baker  for  a  license,  although  it  admitted  that  the  corpora- 
tion could  require  a  fee  for  issuing  and  registering  the  license :  Mayor,  &c. 
of  Mobile  v.  Yuille,  3  Ala.  137,  1841.  Statutory  conditions  precedent  must 
be  complied  with  to  make  a  license  valid;  and  licenses  are  generally  con- 
sidered personal,  ceasing  with  the  life  of  the  licensee,  and  not  transfera- 
ble without  consent:  Munsell  v.  Temple  (grocery  license),  3  Gilm.  (111.)  96; 
Lewis  v.  United  States,  Morris  (Iowa),  199:  Lombard  v.  Cheever  (ferry 
license),  lb.  473;  Brunette  v.  Mayor,  9  La.  430.  As  to  power  to  revoke 
licenses:  Towns  v.  Tallahasse,  11  Flor.  130,  1866.  "Junk  Shops,"  defined  by 
(yNeall,  C.  J.  "to  be  a  place  where  odds  and  ends  are  purchased  or  sold," 
and  cities  are  often  empowered  to  exact  a  license  from  keepers  thereof: 
City  Council  v.  Goldsmith,  12  Rich.  (South  Car.)  Law,  470, 1860.  Shows  de- 
fined: McKee  v.  Town  Council,  Rice  (South  Car.)  Law,  24.  Licensed  auc- 
tioneer held  not  liable  to  the  payment  of  a  pawnbroker's  license,  under  a 
city  ordinance:  Hunt  v.  Philadelphia,  35  Pa.  St.  277. 

2  Chicago  v.  Rumpff,  45  111.  90,  1867.  In  this  case,  under  a  power  granted 
to  city,  in  its  charter,  to  regulate  and  license  the  slaughtering  of  animals 
within  the  corporate  limits,  the  common  council  passed  an  ordinance, 
whereby  a  particular  building  was  designated  for  the  slaughtering  of  all 
animals  intended  for  sale  or  consumption  in  the  city,  the  owners  of  which 
were  granted  the  exclusive  right,  for  a  specified  period,  to  have  all  such  ani- 
mals slaughtered  at  their  establishment,  they  to  be  paid  a  specific  sum  for 
the  privilege  by  all  persons  exercising  it,  and  to  have  the  option  of  accept- 
ing such  proposition,  but  which  was  not  to  take  effect  until  they  executed 
a  certain  bond  therein  required ;  and  it  was  held  that  this  action  of  the 
corporate  authorities  could  not  be  regarded  as  regulating  or  licensing  the 
business,  but  was  simply  a  conditional  proposition,  which,  if  accepted, 
would  constitute  a  contract.  It  was  also  held  that,  this  contract  tended  to 
create  a  monopoly,  and  was  therefore  void.    And  the  opinion  was  expressed 

39 


306  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

§  297.  Intoxicating  liquors. — The  authority  of  municipalities 
to  license,  tax,  restrain,  or  prohibit  the  traffic  in,  or  sale  of,  in- 
toxicating liquors,  is  so  differently  conferred,  and  so  largely  influ- 
enced by  the  general  legislation  and  policy  of  the  state  on  the 
subject,  that  the  decisions  relating  to  it  are  mostly  of  local  ap- 
plication. Sometimes  the  state  laws  are  manifestly  intended  to 
repeal  or  modify  prior  special  charter  provisions,  which  gave 
the  control  of  the  matter  to  the  local  authorities  ;x  and  at  other 
times  incorporated  places  have,  by  the  course  of  legislation, 
been  excepted  from  the  general  operation  of  the  state  laws, 
and  have  been  allowed  to  license,  regulate,  or  prohibit  the 
traffic,  as  they  deemed  best.2 

§  298.  Where  there  are  general  laws  of  the  state  respecting 
the  sale  of  intoxicating  liquors,  a  public  corporation,  by  virtue 
of  a  general  power  "to  make  all  by-laws  that  may  be  neces- 
sary to  preserve  the  peace,  good  order,  and  internal  police" 
therein,  is  not  authorized  to  pass  an  ordinance  requiring  a  cor- 

taat  under  the  charter^  authority  was  conferred  simply  to  pass  ordinances 
to  locate  and  constms;,  and  to  rejulate,  li ; suss,  ra-strain,  abate,  or  prohibit, 
slaughtering  establishments  within  thepre^ribed  limits;  and  to  that  end 
the  corporate  authorities  may  so  regula  e  the  business  as  to  prohibit  its  ex- 
ercise, except  in  a  particular  place ;  but  the  spot  so  designated  must  be 
open  to  the  enjoyment  of  all  persons  alike,  upon  the  same  terms  and 
conditions.  A  monopoly  cannot  be  implied,  but  must  rest  upon  express 
grant:  Canal  Company  v.  Railroad  Company,  11  Leigh,  (Va.)  42,  per  Tucker, 
President     Post,  Chap  XVIII.  as  to  gas  companies. 

1  State  v.  Harris,  10  Iowa,  441;  Burlington  v.  Kellar,  18  Iowa,  59;  Ham- 
mond v.  Haines,  25  Md.  541. 

2  Perdue  ».  Ellis,  18  Geo.  586;  Trustees  r.  Keeting,  4  Denio,  341.  Con- 
struction of  charters  in  connection  with  state  laws  on  the  subject:  Town 
Council  v.  Harbers,  6  Rich.  (South  Car.)  Law,  96 ;  ib.  404;  State  ».  Easta- 
brook,  6  Ala.  653;  West  v.  Greenville,  39  Ala.  69;  Adams  v.  Mayor,  29  Geo 
56;  Chaslain  v.  Town  Council,  29  Geo.  333;  Cuthbert  v.  Conley,  32  Geo.  211 
State®.  Garlock,  14  Iowa,  444;  Harris  v.  Intendant,  &c.  28  Ala.  577  ;  Robin- 
son v.  Mayor,  &c.  1  Humph.  156;  Pekin  v.  Smelzel,  21  111.  464;  State  v.  Plun- 
kett,  3  Harr.  (N.  J.)  5;  both  held  consistent  and  able  to  stand  together: 
Byers  v.  Olney,  16  111.  35:  Page  v.  State,  11  Ala.  849;  Benefleld  v.  Hines,  13 
La.  An.  420;  Louisville  t.  McKean,  18  B.  Mon.  9.  Liquor  license  fee  held 
not  a  tax,  in  the  constitutional  sense  of  the  term,  compelling  uniformity  of 
taxation :  East  St  Louis  v.  Wehrung,  46  111.  392.     Special  provision  of  char- 

'  ter  construed  not  to  give  power  to  prohibit  absolutely  the  sale  of  liquor  in 
the  town  :  Hill  v.  Decatur,  22  Geo.  203. 


CH.   XII.]         ORDINANCES    LICENSING   AMUSEMENTS,    AC.  307 

pOrace  license,   and  punishing  persons  who  sell  such  liquors 
without  being  thus  licensed.1 

§  299.  In  the  absence,  however,  of  controlling  general  legis- 
lation, power  to  a  city  to  pass  "in  general,  every  other  by-law 
or  regulation  that  shall  appear-  to  the  city  council  requisite  and 
necessary  for  the  security,  welfare,  and  conveniency  of  the 
city,  or  for  preserving  the  peace,  order,  and  good  government 
within  the  same,"  was  held  to  authorize  an  ordinance  (and  the 
same  is  constitutional)  to  prevent  shopkeepers,  unless  licensed 
by  the  city,  from  keeping  spirituous  liquors  in  their  shops,  or 
in  any  adjacent  room.2 

A  corporation  whose  charter  contained  the  general  welfare 
clause,  and  also  specific  power  "  to  license  persons  to  retail 
spirituous  liquors,  and  to  prohibit  persons  from  selling  without 
such  license,"  and  was,  it  seems,  silent  as  to  the  amount  which 
might  be  demanded  for  a  license,  was  adjudged  competent  to 
enact  an  ordinance  demanding  $500   as   the  fee  for  a  retail 


1  Commonwealth  o.  Turner,  1  Gush.  493,  1848.  The  limitations  on  such 
a  general  power  to  make  by-laws,  discussed  by  Shaw,  C.  J.  As  to  text,  see 
Commonwealth  v.  Dow,  10  Met.  382,  1845.  General  welfare  clause  does  not 
authorize  a  municipal  corporation  to  pass  an  ordinance  prohibiting  the 
retail  of  intoxicating  liquors,  when  this  is  repugnant  to  the  state  laws  on 
the  subject :  Ex  parte  Burnett,  30  Ala.  461,  1857.  But  under  a  different 
state  of  general  legislation,  see  State  u.  Clark,  8  Poster  (N.  H.),  176,  1854  ; 
Heisembrittle  v.  City  of  Charleston,  2  McMullen  (South  Car.),  233 ;  State  « 
Ferguson,  22  N.  H.  424,  1851 ;  distinguished  from  and  commenting  on  the 
above  cases :  State  v.  Freeman,  38  N.  H.  426,  approving  and  following, 
State  v.  Clark,  8  Fost.  176;  Megowan  v  Commonwealth,  2  Met.  (Ky.)3,1859. 

2  Heisembrittle  r.  City  Council,  2  McMullen  (South  Car.),  Law,  233,  1842. 
Followed  and  affirmed :  City  Council  v.  Ahrens,  4  Strob.  (South  Car.*  Law, 
241, 1850.  See  City  Council  «.  Baptist  Church  (giving  preamble  to  charter 
in  question),  ib.  306,  308.  A  town  had  exclusive  authority  over  the  sale  of 
liquors  therein,  and  it  was  held  that  power  to  "regulate,  restrain,  and  sup- 
press shops  and  places  for  the  sale  of  ardent  spirits  by  retail,",  amounted  to 
an  authority  to  forbid  the  sale ;  for  if  there  is  a  sale  it  must  be  made  in 
some  shop  or  place:  Clintonville  v.  Keeting,  4  Denio,  341,  1847  ;  Thomas  v. 
Mt.  Vernon,  9  Ohio,  290.  Construction  of  charter  provisions,  holding  that 
the  sale  of  intoxicating  liquors  might  be  declared  a  nuisance  by  the  munic- 
ipal authorities :  Block  v.  Jacksonville,  36  111.  301 ;  Goddard  v.  Same,  15  ib. 
588 ;  Byers  v.  Trustees,  &c.  16  ib.  35 ;  Pekin  v.  Smelzel,  21  ib.  464. 

3  Perdue  v.  Ellis,  19  Geo.  586,  1855.  But  see  Ex  parte  Burnett,  30  Ala.  461, 
and  compare  that  with  Intendant  v.  Chandler,  6  Ala.  899.    See  also  St.  Louis 


308  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

Power  by  its  charter  to  a  city  "  to  tax,  or  entirely  suppress, 
all  petty  groceries,"  was  held,  in  connexion  with  other  provis- 
ions of  the  charter  expressly  authorizing  certain  other  sub- 
jects to  be  licensed,  not  to  confer  upon  the  corporation  the 
power  to  grant  licenses  for  retailing  vinous  liquors,  and  to  de- 
mand a  sum  of  money  therefor.1 

Ordinances  Relating  to  Public  Offences. 

§  300.  Distinction  Between  Laws  and  By-  Laws  —  Concurrent 
Prohibitions,  £c. —  Statute  law  and  by-laws  are  intended  to  meet 
different  wants  and  exigencies,  and  to  serve  different  purposes. 
The  former,  when  general  in  its  nature  and  operation,  is  in- 
tended to  furnish  a  rule  for  the  government  of  the  people  of 
the,  state  everywhere.  The  latter,  made  by  the  corporation 
under  derivative  authority,  are  local  regulations  for  the  gov- 
ernment of  the  inhabitants  of  the  incorporated  place  ;  and  of 
course  they  must  be  void  unless  specially  authorized  by  the 
charter  or  organic  act  of  the  corporation,  when  they  are  re- 
pugnant to,  or  inconsistent  with,  the  general  law  of  the  land. 
No  implied  power  to  pass  by-laws,  and  no  express  general 
grant  of  the  power,  can  authorize  a  by-law  which  conflicts 
either  with  the  national  or  state  constitution,  or  with  the  stat- 
ute of  the  state,  or  with  the  general  principles  of  the  common 
law  adopted  or  in  force  in  the  state. 

§  301.  The  laws  of  the  state  operate  within  the  limits  of 
municipal  corporations  and  upon  their  inhabitants  the  same  as 
elsewhere,  unless  it  is  otherwise  clearly  provided  in  the  char- 
ter, or  by  some  statute  of  the  state;  and  unless  so  provided,  in 
case  of  conflict  between  laws  and  by-laws,  the  latter  must  give 
way.     But  the  state  may,  and  as  to  local  matters  frequently 

v.  Smith,  2  Mo.  113  ;  where  there  was  charter  power  to  "  restrain  and  pro- 
hibit tippling  houses,"  and  the  corporation  was  held  entitled  to  impose  a 
license  fee.  Power  to  "  tax  "  and  "  restrain  "  sale  of  liquor  includes  power 
to  grant  licenses :  Mt.  Carmel  v.  Wabash  county,  50  111.  69, 1869. 

1  Leonard  v.  Canton,  35  Miss.  (6  Geo.)  189,  1858.  Power  "  to  prohibit 
tippling  houses,"  does  not  authorize  an  ordinance  prohibiting  sales  of  beer 
by  brewers :  Strauss  v.  Pontiac,  40  111.  301,  1866.  Prohibition  in  ordinance 
to  sell  liquors  without  license,  held  not  to  apply  to  sales  by  manufacturers, 
but  to  retail  dealers :  St.  Paul  v.  Troyer,  3  Minn.  291. 


CH.  XII.]      ORDINANCES    RELATING   TO    PUBLIC    OFFENCES.  309 

does,  except  municipal  corporations  from  the  operation  of  its 
law*,  and  either  provides  a  special  law  for  them  or  authorizes 
them  to  provide  special  regulations  for  themselves ;  and  when 
this  is  done  there  is  no  conflict.  But  these  local  laws  and 
regulations  are  at  all  times  subject  to  the  paramount  authority 
of  the  legislature.  Questions  of  difficulty  have  arisen  in  con- 
sequence of  grants  of  power  to  municipal  corporations  to  make 
ordinances  respecting  matters  and  acts  already  regulated  by 
general  statute,  and  if  criminal  in  their  nature,  punishable 
under  the  laws  of  the  state.  Hence,  the  same  act  comes  to  be 
forbidden  by  general  statute,  and  by  the  ordinance  of  a  muni- 
cipal corporation,  each  providing  a  separate  and  different  pun- 
ishment. The  same  transaction  may,  if  complex  in  its  nature, 
be  in  one  part  of  it  an  offence  against  the  general  law,  and  in 
another  against  the  by-law,  but  such  cases  present  no  difficulty. 
But  can  the  same  act  be  twice  punished,  once  under  the  ordi- 
nance and  nnce  under  the  statute?  The  cases  on  this  subject 
cannot  be  reconciled.  Some  hold  that  the  same  act  may  be  a 
double  offence,  one  against  the  state  and  one  against  the  cor- 
poration. Others  regard  the  same  act  as  constituting  a  single 
offence,  and  hold  that  it  can  be  punished  but  once,  and  may 
be  thus  punished  by  whichever  party  lirst  acquires  juris- 
diction. 

§  302.  In  view  of  the  somewhat  strict  construction  of  grants 
of  corporate  powers,  elsewhere  explained  and  illustrated,  and 
of  the  subordinate  nature  and  purposes  of  by-laws,  the  follow- 
ing rules,  although  seeming  to  rest  on  sound  principles,  are,  in 
view  of  the  decisions,  stated  with  some  distrust  of  their  entire 
correctness :  I.  A  general  grant  of  power,  such  as  mere 
authority  to  make  by-laws,  or  authority  to  make  by-laws  tor 
the  good  government  of  the  place,  and  the  like,  should  not  be 
held  to  confer  authority  upon  the  corporation  to  make  an  or- 
dinance punishing  an  act  —  for  example,  an  assault  and  bat- 
tery, which  is  made  punishable  as  a  criminal  offence  by  the 
laws  of  the  state.  The  intention  of  the  state  that  the  general 
laws  shall  not  extend  to  the  inhabitants  of  municipal  corpora- 
tions, or  that  these  corporations  shall  have  the  power,  by  ordi- 
nance, to  supersede  the  state  law,  will  not  be  interred  trom 


310  MUNICIPAL    CORPORATIONS.  [CH.  XII. 

grants  of  power  general  in  their  character;  nor  will  such 
authority  in  the  corporation  be  held  to  exist  as  an  implied  or 
incidental  right.  II.  Where  the  act  is,  in  its  natur.e,  one  which 
constitutes  two  offences,  one  against  the  state  and  one  against 
the  municipal  government,  the  latter  may  be  constitutionally 
authorized  to  punish  it,  though  :t  be  also  an  offence  under  the 
state  law  ;  but  the  legislative  intention  that  this  may  be  done 
should  be  manifest  and  unmistakable,  or  the  power  in  the  cor- 
poration should  be  held  not  to  exist.  III.  Where  the  act  or 
matter,  covered  by  the  charter  or  ordinance,  and  by  the  state 
law,  is  not,  essentially,  criminal  in  its  nature,  and  is  one  which 
is  generally  confided  to  the  supervision  and  control  of  the  local 
government  of  cities  and  towns,  but  is  also  of  a  nature  to  re- 
quire general  legislation,  the  intention  that  the  municipal 
government  should  have  power  to  make  new,  further,  and 
more  definite  regulations,  and  enforce  them  by  appropriate 
penalties,  will  be  inferred  from  language  which  would  not  be 
sufficient  were  the  matter  one  not  specially  relating  to  corpo- 
rate duties,  and  fully  provided  for  by  the  general  laws.  iSuch 
are  the  general  principles  to  be  extracted  from  the  authorities, 
but  the  exact  state  of  the  law  will  more  satisfactorily  appear, 
and,  indeed,  can  only  be  seen  by  reference  to  the  adjudicated 
cases ;  accordingly,  the  leading  ones  upon  the  subject  are 
stated  in  the  note,1  and  in  some  of  its  aspects  the  matter  is 
further  considered  in  the  chapter  on  Municipal  Courts. 

1  Ex  parte  Smith,  Hempstead,  201,  1832  ;  Mayor,  &c.  of  Savannah  v.  Hus- 
sey,  21  Geo.  80,  1857 ;  New  Orleans  v.  Miller,  7  La.  An.  651,  1852  ;"  Munici- 
pality v.  Wilson,  5  ib.  747  ;  State  v.  Cowan,  29  Mo.  330  (furious  driving) ;  St. 
Louis  v.  Cafferata,  24  Mo.  94  (Sunday  ordinances) ;  Amboy  v.  Sleeper,  31  111. 
499 ;  State  v.  Ledford,  3  Mo.  102 ;  Independence  v.  Moore,  32  Mo.  392 ;  Mc- 
Laughlin v.  Stevens,  2  Cranch  C.  C.  R.  148 ;  St.  Louis  v.  Bentz,  11  Mo.  61 
(ordinance  against  vagrants) ;  United  States  v.  Holly,  3  Cranch  C.  C.  R.  656 ; 
Jefferson  City  v.  Courtmire,  9  Mo.  683  (ordinance  against  riots) ;  Davis  v. 
State,  4  Stew.  &  Port.  (Ala.),  83 ;  State  v.  Rlunkett,  3  Harrison  (N.  J.),  5, 
1840 ;  Rice  v.  State,  3  Kansas,  141,  1865 ;  Rogers  v.  Jones,  1  Wend.  261 ; 
Mayor,  &c.  of  New  York  v.  Hyatt,  3  E.  D.  Smith,  156  ;  Borough  of  York  v. 
Forscht,  23  Pa.  St.  391 ;  March  v.  Commonwealth,  12  B.  Mon.  25 ;  Commis- 
sioners v.  Harris,  7  Jones  (Law),  281 ;  Brooklyn  v.  Toynbee,  31  Barb.  282 ; 
Davenport  «.  Bird,  32  Iowa  (not  yet  reported),  Dec.  Term,  1871 ;  Zylstra  v. 
Charleston,  2  Bay  (South  Car.),  382 ;  Petersburg  v.  Metzker,  21  111.  205, 1859  ; 
Barter  v.  Commonwealth,  3  Pa.  253 ;  State  v.  Clark,  1  Dutch.  (N.  J.)  54 ;  State 
v.  Pollard,  6  Rh.  Is.  290 ;  People  v.  Jackson,  8  Mich.  110. 


CH.  XII.J    ORDINANCES    RELATING    TO    PUBLIC    HEALTH,    AC.  311 

Ordinances  Relating  to  the  Public  Health,  Safety,  and  Convenience. 

§  303.  Health  Ordinances —  Hospitals  and  Burials. —  Our  mu- 
nicipal corporations  are  usually  invested  with  power  to  pre- 
serve the  health  and  safety  of  the  inhabitants.   This  is,  indeed, 

Treating  of  the  constitutional  question  involved,  Mr.  Justice  Cooley  re- 
marks, that  although  the  decisions  are  not  uniform,  the  clear  weight  of 
authority  is,  "  that  the  same  act  may  constitute  an  offence  both  against  the 
state  and  the  municipal  corporation,  and  both  may  punish  it  without  viola- 
tion of  any  constitutional  principle : "  Const.  Lim.  199 ;  S.  P.  March  v.  Com- 
monwealth, 12  B.  Mon.  25,  29,  per  Simpson,  C.  J.  In  England  a  by-law  im- 
posing a  penalty  on  a  corporator,  for  refusing  to  serve  in  a  corporate  office, 
is  valid,  notwithstanding  the  party  may  be  indicted  for  the  same  refusal,  as 
he  may  be  in  all  cases  of  municipal  offices  necessary  or  proper  to  carry  on 
the  government  of  the  corporation:  Grant  on  Corp.  82.  A  distinction  was 
there  early  made  between  grave  offences  classified  as  pleas  of  the  crown 
and  triable  upon  an  issue  of  not  guilty  between  the  king  and  the  defend- 
ant, and  lesser  or  petty  offences  punishable  by  fine  or  amerciament  upon 
presentment  in  court  leet,  or  inferior  jurisdictions :  See  Hale,  P.  C.  Vol.  I. 
Chap.  LII. ;  Vol.  II.  Chap.  XIX. ;  Norton's  Com.  London,  370,  453. 

In  Georgia  the  general  welfare  clause  in  a  charter  was  decided  not  to 
authorize  the  passage  of  an  ordinance  prescribing  a  different  mode  of  trial 
and  punishment  in  addition  to  that  provided  for  by  the  general  criminal 
code  of  the  state,  for  harboring  and  enticing  seamen :  Savannah  v.  Hussey, 
21  Geo.  80, 1857.  The  power  of  municipal  corporations  to  legislate  respecting 
offences  fully  covered  by  the  state  law  is  denied,  and  the  general  subject  is 
largely  and  satisfactorily  discussed,  and  it  is  well  remarked  that,  in  such 
cases,  "  the  law  of  the  state  is  the  law  of  the  corporation  ;  and  they  cannot 
make  another  law  for  themselves."  The  following  is  extracted  from  the 
opinion  delivered  by  a  very  able  judge :  "  Under  the  general  grant  of 
power  (to  pass  all  such  ordinances  as  may  seem  necessary  for  the  security, 
welfare,  &c,  of  the  city)  the  city  authorities  may  cover  all  [proper]  cases  not 
provided  for  by  the  paramount  authorities  of  the  state.  All  those  ordi- 
nances regulating  cemeteries,  commons,  markets,  vehicles,  fires,  exhibi- 
tions, lamps,  licenses,  water  works,  watch,  police,  city  taxes,  city  officers, 
health,  nuisances,  &c,  are  legitimate  and  proper.  Nay,  I  might  go  further, 
and  concede  that  where  a  state  law  defines  an  offence  generally,  and  pre- 
scribes a  punishment  without  reference  to  the  place  where  it  is  committed, 
in  town  or  country,  and  the  act,  when  committed  in  the  streets  and  public 
places  of  the  city,  would  be  attended  with  circumstances  of  aggravation, 
such  as  an  affray,  for  instance,  the  corporate  authorities,  with  a  view  to 
suppress  this  special  mischief,  might  probably  provide  against  it  by  ordi- 
nance. But  this  is  going  quite  far  enough."  But  I  deny  that  "a  municipal 
corporation  can  legislate  criminaliter  upon  a  case  fully  covered  by  the  state 
law,  though  aware  that  decisions  may  be  found  to  support "  that  view : 
Per  Lumpkin,  J.,  in  Savannah  v.  Hussey,  21  Geo.  80,  86,  1857.  And  it  is  set- 
tled in  Georgia,  that  where  an  act  amounts  to  an  indictable  offence  it  can- 


312  MUNICIPAL    CORPORATIONS.  [CH.  XII. 

one  of  the  chief  purposes  of  local  government,  and  reasonable 
by-laws  in  relation  thereto  have  always  been  sustained  in  Eng- 
land   as   within   the   incidental   authority   of  corporations  to 

not  be  punished  under  municipal  ordinances,  but  the  offender  must  be 
bound  over  to  the  proper  court ;  if  it  does  not  amount  to  an  indictable 
offence  the  offender  may  be  punished  under  the  ordinances  of  the  munici- 
pality, and  if  it  is  a  nuisance,  steps  may  also  be  taken  to  hav<  it  abated : 
Vason  v.  Augusta,  38  Geo.  542, 1868. 

But  in  Alabama  it  is  held  that  a  municipal  corporation,  with  power  to 
enact  ordinances  "  for  the  good  government  of  the  place,  not  contravening  the 
laws  of  the  state,"  may  pass  an  ordinance  imposing  a  fine  for  an  assault  and 
battery  within  its  limits,  and  a  punishment  under  the  state  law  for  the 
same  act  is  no  bar  to  a  prosecution  under  the  ordinance.  Collier,  C.  J.,  de- 
livering the  opinion  of  the  court,  says :  "  The  object  of  the  power  con- 
ferred by  the  charter,  and  the  purpose  of  the  ordinance  itself,  was  not  to 
punish  au  offence  against  the  criminal  justice  of  the  country,  but  to  provide 
a  mere  police  regulation  for  the  enforcement  of  good  order  and  quiet  within 
the  limits  of  the  corporation.  *  *  The  offences  against  the  corporation 
and  the  state  are  distinguishable  and  wholly  disconnected,  and  the  prosecu- 
tion at  the  suit  of  each  proceeds  upon  a  different  hypothesis  —  the  one  con- 
templates the  observance  of  the  peace  and  good  order  of  the  city ;  the  other 
has  a  more  enlarged  object  in  view  —  the  maintenance  of  the  peace  and 
dignity  of  the  state  : "  Mayor,  &c.  of  Mobile  v.  Allaire,  14  Ala.  400,  1848. 
If  the  principle  stated  in  the  text  be  correct,  the  soundness  of  this  decision 
under  the  powers  conferred  on  the  corporation  may.admit  of  doubt,  but  the 
same  view  had  been  previously  taken  in  the  same  court  in  The- Mayor,  &c. 
of  Mobile  v.  Rouse  (liquor  law),  8  Ala.  515,  1845.  And  see  Moore  v.  State, 
16  Ala.  411 ;  Greensboro  v.  Mullins,  13  Ala.  341.  Extent  of  police  power : 
Shafer  v.  Mumma,  17  Md.  331.    Ante,  Sees.  93,  95,  291,  292. 

Authority  to  pass  ordinances  "  to  preserve  the  health  and  comfort  of  the 
town,"  does  not  empower  the  corporation  to  pass  an  ordinance  to  prevent 
or  punish  breaches  of  the  peace :  Raleigh  v.  Dougherty,  3  Humph.  (Tenn.) 
11,  1842.  See  chapter  on  Municipal  Courts,  post.  Where  gambling  and  the 
keeping  of  gambling  houses  are  made  public  offences  by  state  laws,  offenders 
may  be  prosecuted  in  the  state  courts  for  the  violation  of  these  laws,  not- 
withstanding the  organic  acts  of  cities  may  give  to  the  city  council  power 
"  to  restrain,  prohibit,  and  suppress  games  and  gambling  houses."  In  thus 
holding,  the  court  adds :  "  It  is  not  necessary,  in  this  case,  to  decide 
whether  both  the  slate  and  the  city  can  punish  for  the  same  act ;  but  we 
have  no  doubt  that  the  one  which  shall  first  obtain  jurisdiction  of  the  per- 
son of,  the  accused  may  punish  to  the  extent  of  its  power :  "  Rice  v.  State 
3  Kansas,  141, 1865.  Gambling  being  punishable  under  the  general  law,  a 
city  council  "  invested  with  authority  to  make  ordinances  to  secure  the  in- 
habitants against  fire,  against  violations  of  the  law  and  the  public  peace,  to 
suppress  riots,  gambling,  drunkenness,  indecent  and  disorderly  conduct,  to 
punish  lewd  behavior  in  public  places,  *  *  and,  generally,  to  provide 
for  the  safety,  prosperity,  and  good  order  of  the  city,"  possesses,  by  virtue 


CH.  XII.]     ORDINANCES   RELATING   TO    PUBLIC   HEALTH,    AC.  313 

ordain.  It  will  be  useful  to  illustrate  the  subject  by  reference 
to  some  of  the  adjudged  cases.1  An  ordinance  of  a  city  pro- 
hibiting, under  a  penalty,  any  person,  not  duly  licensed  there- 
for   by    the   city   authorities,   from   "  removing   or  carrying 

thereof,  no  power  to  make  the  keeping  of  any  gambling  device  a  misde- 
meanor, and  to  punish  the  same :  Mount  Pleasant  v.  Breeze,  11  Iowa,  '399, 
1860. 

In  Missouri  it  is  held  that  where  the  same  act  (as,  for  example,  furious 
driving  in  highways  and  public  places)  is  a  violation  of  a  valid  municipal 
ordinance  and  of  the  general  criminal  statutes  of  the  state,  the  offender  can 
be  punished  but  once,  and  hence,  to  an  indictment  in  the  state  court,  he 
may  plead  a  former  conviction  under  the  ordinance  of  the  municipal  cor- 
poration :  State  v.  Cowan,  29  Mo.  330,  1860.  But  auxre.  The  opinion  in 
this  case  assumes,  without  discussion,  that  the  offence  is  single :  lb. 

In  Slaughter  v.  People,  2  Doug.  (Mich.)  334,  the  principle  was  decided 
that  it  was  not  competent  to  punish,  under  a  city  ordinance,  an  act  which 
was  indictable.  Illustrating  the  difference  between  prosecutions  under 
special  penal  provisions  of  a  city  charter,  of  acts  with  specified  fines  and 
penalties  affixed  by  the  charter,  but  which  acts  are  breaches  of  the  law  of 
the  state,  wherever  committed,  and  ordinary  prosecutions  under  municipal 
ordinances,  see  Wayne  County  v.  Detroit,  17  Mich.  390,  1868 ;  People  v. 
Detroit,  18  Mich.  445,  1869 ;  People  v.  Jackson,  8  Mich.  110.  Post,  Chap. 
XIII. 

In  Indiana  it  was  first  held,  that  where  the  act  complained  of  is  indicta- 
ble as  a  criminal  offence  against  the  laws  of  the  state,  a  person  could  not  be 
punished  for  such  act  under  or  by  virtue  of  the  ordinances  of  a  city :  City 
Council  of  Indianapolis  v.  Blythe,  2  Ind.  (Carter)  75,  1850.  In  this  case  the 
city,  unsuccessfully,  sought  to  recover  a  penalty  prescribed  by  ordinance 
for  an  assault  and  battery  committed  by  the  defendant  within  the  city : 
Same  principle,  City  of  Madison  v.  Hatcher,  8  Blackf.  341,  1846.  But  these 
cases  were  overruled  by  Ambrose  v.  State,  6  Ind.  351,  in  which  it  was 
held  that  a  single  act  might  constitute  two  offences,  one  against  the  state 
and  one  against  the  municipal  government,  and  "  that  each  might  punish 
in  its  own  mode,  by  its  own  officers,  the  same  act  as  an  offense  against 
each : "  Perkins,  J.,  in  Waldo  v.  Wallace,  12  Ind.  582,  1859,  where  prior 
cases  in  that  state  are  referred  to.  See,  also,  Lawrenceburg  v.  West,  16  Ind. 
337 ;  Fox  v.  State,  5  How.  410 ;  Moore  v.  People,  14  How.  13. 

In  Louisiana,  municipal  corporations  are  held  to  have  no  power  to  im- 
pose a  penalty  on  that  which  is  made  punishable  as  a  criminal  offence  by 
the  laws  of  the  state.  But  it  is  admitted  that  there  is  a  class  of  offences 
against  public  order  not  made  punishable  by  the  state  law,  which  it  is 
within  the  power  of  such  corporation  to  suppress :  New  Orleans  v.  Miller, 
7  La.  An.  651,  1852 ;  Municipality  v.  Wilson,  5  ib.  747.  This  case  seems  to 
concede  that  the  city  corporation  cannot  punish  for  an  act  identical  with 
that  punished  by  the  state  law.  See,  also,  Commissioners  v.  Harris,  7  Jones 
(Law),  281 ;  People  v.  Jackson,  8  Mich.  110. 

1  Ante,  Chap.  VI.  p.  137,  Sec.  95. 
40 


314  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

through  any  of  the  streets  of  the  city  any  house  dirt,  refuse, 
offal,  or  filth,"  is  not  improperly  in  restraint  of  trade,  and  is 
reasonable  and  valid.  Such  a  by-law  is  not  in  the  nature  of  a 
monopoly,  but  is  founded  upon  a  wise  regard  for  the  public 
health.  It  was  contended '  that  the  city  could  regulate  the 
number  and  kind  of  horses  and  carts  to  be  employed  by- 
strangers  or  unlicensed  persons  as  well  as  they  could  those  of 
licensed  persons.  But  practically  it  was  considered  that  the 
main  object  of  the  city  could  be  better  accomplished  by  em- 
ploying men  over  whom  they  have  entire  control,  night  and 
day,  who  are  at  hand,  and  able  from  habit  to  do  the  work  in 
the  best  way  and  at  the  proper  time.1 

§  304.  Authority  by  charter  to  pass  ordinances  respecting 
the  harbors  and  wharves,  and  "  every  other  by-law  necessary 
for  the  security,  welfare,  and  convenience  of  the  city,"  gives 
to  the  city  council  power  to  pass  a  health  ordinance,  requiring 
boats  coming  from  infected  places  to  anchor  before  landing, 
and  to  submit  to  an  examination,  provided  such  ordinance 
be  not  repugnant  to  the  general  law  of  the  state.  And  it  was 
further  held,  that  a  general  law  of  the  state  prohibiting  "any 
person  coming  into  the  state  from  an  infected  place,  and  in 
violation  of  quarantine  regulations,"  was  not  repugnant  to  and 
did  not  render  the  ordinance  invalid.2 

1  Vandine,  petitioner,  6  Pick.  187,  1828 ;  commented  on  in  Common- 
wealth v.  Stodder,  2  Cush.  562,  575,  576,  1848.  In  Zylstra  v.  Corporation  of 
Charleston,  1  Bay  (South  Car.),  382,  1794,  Mr.  Justice  Waties  (one  of  the 
most  accomplished  of  early  American  judges),  speaking  of  an  ordinance 
prohibiting  the  making  of  soap  or  candles  contrary  to  the  mode  prescribed 
and  within  the  limits  of  the  city,  says :  "  I  am  willing  to  admit  that  the 
by-law  itself  is  a  valid  one.  If  it  restrained  an  inoffensive  trade  it-  would 
not  be  so ;  but  it  is  made  to  restrain  one  that  is  both  offensive  and  danger- 
ous. It  is,  therefore,  calculated  to  guard  the  comfort  and  safety  of  the  citi- 
zens ;  and  the  benefit  of  a  by-law  is,  generally,  the  touch-stone  of  its  validity." 

Power  to  a  city  council  to  compel  the  owners  and  occupants  of  slaughter- 
houses to  cleanse  and  abate  them  whenever  necessary  for  the  health  of  the 
inhabitants,  was  considered  not  to  authorize  an  ordinance  entirely  prohib- 
iting the  slaughtering  of  animals  within  certain  limits  of  the  city  :  Wrex- 
ford  r.  People,  14  Mich.  41,  1865 ;  see  Metropolitan  Board  of  Health,  37 
N.  Y.  661;  Shrader,  Ex  parte,  33  Cal.  279,  1867.  Powers  with  respect  to 
privies :    Gregory  o.  Eailroad  Company,  40  N.  Y.  273. 

2  Dubois  v.  Augusta,  Dudley  (Geo.),  30, 1831.    Ante,  p.  137. 


CH.  XII.]     ORDINANCES   RELATING   TO    PUBLIC   HEALTH,    AC.  315 

§  305.  Hospitals. —  Authority  to  the  corporation  of  New 
Orleans  "  to  pass  such  by-laws  as  they  shall  deem  necessary  to 
maintain  the  cleanliness  and  salubrity  of  the  city,"  was  consid- 
ered, in  view  of  its  extensive  nature,  certain  provisions  of  the 
civil  code,  and  the  liability  of  the  city  to  epidemics,  as  confer- 
ring power  upon  the  city  council  to  prohibit  the  erection  and 
maintenance  of  private  hospitals ;  the  court  admitting  that  the 
same  question  had  been  decided  otherwise  by  tribunals  gov- 
erned 13y  the  common  law  jurisprudence.1 

1  Milne  v.  Davidson,  5  Martin  (La..),  410,  1827. 

As  to  city  hospitals,  see  Vionet  v.  Municipality,  4  La.  An.  42 ;  Bozant  v. 
Campbell,  9  Rob.  (La.)  411 ;  City  Council  e.  Boyd,  1  Const.  Rep.  A.  D.  1817 
(South  Car.),  352 ;  Tucker  v.  Virginia  City,  4  Nev.  20.  Municipal  corpora- 
tion may  found  hospitals  for  the  poor  under  39  Eliz.  Chap.  V.  In  re  New- 
castle, 12  Clark  &  Fin.  402. 

Quarantine  ordinances  of  a  municipal  corporation,  passed  by  virtue  of  a 
grant  of  power  from  the  state,  whereby  passenger  vessels  are  required  to 
remain  in  quarantine  for  a  specified  period,  are  not  repugnant  to  the  com- 
mercial clause  of  the  federal  constitution :  St.  Louis  v.  McCoy,  18  Mo.  238, 
1853  ;  S.  P.  St.  Louis  ».  Bofnnger,  19  ib.  13  ;  Metcalf  v.  St.  Louis,  11  ib.  103. 
In  modern  usage,  quarantine  is  not  confined  to  vessels  having  on  board  the 
plague,  but  extends  to  vessels  having  on  board  other  contagious  diseases : 
Per  Tenney,  C.  J.,  Mitchell  t>.  Rockland,  41  Maine,  363,  1856  ;  S.  C.  again,  45 
Maine,  496,  1858.    Ante,  p.  137,  Sec.  95. 

Boards  of  Health. — An  ordinance  creating  and  giving  to  the  board  of 
health  "  general  supervision  over  the  health  of  the  city,"  and  "  all  necessa- 
ry power  to  carry  the  ordinance  into  effect,"  was  considered  to  include  the 
power  to  rent  a  building  for  a  temporary  hospital,  to  protect  the  city  from 
an  apprehended  visitation  of  the  cholera,  and  to  make  the  corporation 
liable  for  the  rent,  although  it  did  not  become  necessary  to  use  the  house : 
Aull  v.  Lexington,  18  Mo.  401, 1853.  Power  of  board  of  health  to  bind  corpo- 
ration :  Frend  v.  Dennett,  4  C.  B.  (N.  S.)  576 ;  Barton  v.  New  Orleans,  16  La. 
An.  317 ;  Belcher  v.  Farrar,  8  Allen,  325 ;  Hazen  v.  Strong,  2  Vt.  427  ;  Com- 
missioners v.  Powe,  6  Jones  (Law),  134 ;  Wilkinson  v.  Albany,  8  Fost.  9.  Reg- 
ularly, the  orders  of  a  board  of  health,  directing  the  abatement  of  a 
nuisance,  should  be  in  writing.  Such  orders  maybe  proved  by  the  minutes 
of  the  board,  by  the  written  orders  themselves  or  by  being  recited  in  the 
proceedings  of  the  corporation  of  which  the  board  of  health  are  members. 
How  far  parol  evidence  may  be  received  of  such  orders,  when  it  appears  that 
no  record  or  written  evidence  ever  existed,  is  not  free  from  doubt : :  Meeker 
v.  Van  Rensselaer,  15  Wend.  397, 1836,  where  parol  evidence  of  this  kind 
was  held  inadmissible  by  the  Supreme  Court.  But  see,  in  Court  of  Errors, 
Van  Wormer  v.  Mayor,  18  Wend.  169  ;  affirming  S.  C.  15  Wend.  263.  See, 
also,  People  v.  Adams,  9  Wend.  333 ;  6  ib.  651.    Ante,  Chap.  XI. 


316  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

§  306.  Cemeteries  and  Burials. —  The  public  health,  comfort, 
and  convenience  are  concerned  in  the  proper  regulation  of 
burials ;  and  the  evils  resulting  from  its  neglect  are  especially 
to  be  apprehended  in  the  crowded  populations  of  cities.  Pow- 
er to  regulate  this  matter  may  properly  be  conferred  upon 
municipal  corporations.  And  such  power  will  be  held  to  be 
given  by  authority  to  make  police  regulations  or  to  pass  by- 
laws respecting  the  health,  good  government,  and  welfare  of 
the  place.1  Power  to  city  corporation,  after  enumerating  va- 
rious objects,  "in general  to  pass  every  other  by-law  that  to  it 
shall  seem  requisite  and  necessary  for  the  security,  welfare, 
and  convenience  of  the  city,"  &c,  was,  by  the  Court  of  Ap- 
peals of  South  Carolina,  considered  to  give  authority  to  regu- 
late the  burial  of  the  dead,  and  particularly  to  prevent  the 
establishment  of  new  burial  grounds  within  the  limits  of  the 
city,  and,  in  the  opinion  of  the  organ  of  the  court,  also  to  reg- 
ulate the  time  of  burial,  the  manner  of  interment  so  as  to  pre- 
vent noxious  effluvia,  and  to  prohibit  interments  in  the  private 
gardens,  yards,  and  by-places  of  the  city.2  But  as  every  by- 
law must  be  reasonable,  an  arbitrary  and  unnecessary  or 
oppressive  restraint  upon  the  right  of  burying  the  dead  is 
invalid.3 

1  Bogert  ii.  Indianapolis,  13  Ind.  134,  1859,  per  Perkins,  J. ;  Mayor,  &c.  of 
New  York  v.  Slack,  3  Wheel.  Cr.  Cas.  237,  1824 ;  Presbyterian  Church  v. 
Mayor,  &c.  of  New  York,  5  Cow.  538,  1826 ;  Coates  v.  Same,  7  Cow.  582, 1827  ; 
Austin  v.  Murray,  16  Pick.  121, 1834 ;  Commonwealth  v.  Fahey,  5  Cush.  408, 
1850  ;  New  Orleans  v.  St.  Louis  Church,  11  La.  An.  244,  1856 ;  distinguished 
from  Presbyterian  Church  v.  Mayor,  &c.  of  New  York,  supra;  Common- 
wealth v.  Goodrich,  13  Allen,  546. 

2  City  Council  v.  Baptist  Church,  4  Strob.  (South  Car.)  Law,  306,  309, 1850, 
per  Frost,  J. ;  S.  P.  Bogert  v.  Indianapolis,  13  Ind.  134,  per  Perkins,  J. ;  New 
Orleans  v.  St.  Louis  Church,  11  La.  An.  244  ;  distinguished  from  5  Cowen, 
538,  supra;  Musgrove  v.  Catholic  Church,  10  La.  An.  431. 

3  Austin  v.  Murray,  16  Pick.  121,  1834;  Coates  v.  Mayor,  &c.  of  New  York, 
7  Cow.  585 ;  Commonwealth  v.  Fahey,  5  Cush.  408,  1850. 

The  law  of  burials,  in  some  of  its  relations  to  property  and  municipal 
rights,  was  ably  considered  by  the  Hon.  Samuel  B.  Buggies,  referee,  in  the 
matter  of  the  opening  of  Beekman  street,  in  New  York  City,  whose  report 
establishing  the  following  principles  was  confirmed  by  the  Supreme  Court : 
1.  In  this  country,  corpses  and  their  burials  are  not  matters  of  ecclesiastical 
cognizance.  2.  That  the  right  to  bury  a  corpse  and  preserve  its  remains  is 
a  legal  right,  belonging,  in  the  absence  of  testamentary  disposition,  exclu- 


CH.  XII.]    ORDINANCES    RELATING   TO    PUBLIC   HEALTH,    AC.  317 

§  307.  Where  the  burden,  to  support  a  public  cemetery  is  re- 
quired to  be  borne  by  all  the  citizens,  an  ordinance  throwing 
that  burden  upon  a  particular  class  is  unreasonable  and  void.1 
Cemeteries  in  cities  are  not  per  se  nuisances,  but  special  circum- 
stances may  make  them  so.  It  is  not,  however,  sufficient  that 
they  affect  the  market  value  of  property  in  the  vicinity.2  A 
city  corporation  had  power,  by  charter,  "  to  establish  cemeter- 
ies or  burial  places  within  or  without  the  city."  It  was  held 
that  this  would  authorize  the  city  to  establish  cemeteries  of  its 
own,  and  regulate  them ;  but  that  it  did  not  empower  the 
council  to  subject  to  the  control  of  the  city  sexton  cemeteries 
other  than  those  belonging  to  the  city,  nor  to  pass  an  ordi- 
nance prohibiting  lot  owners  in  private  cemeteries,  though 
within  the  city  limits,  from  entering  to  bury  without  the  per- 
mission of  the  city  sexton,  to  be  obtained  only  by  paying  him 
the  price  of  digging  a  grave.3 

§  308.  Nuisances,  and  of  the  Power  to  Prevent  and  Abate. —  It 
is  to  secure  and  promote  the  public  health,  safety,  and  conve- 
nience, that  municipal  corporations  are  so  generally  and  so 
liberally  endowed  with  power  to  prevent  and  abate  nuisances. 
This  authority  may  be  constitutionally  conferred. on  the  incor- 
porated place,  and  it  authorizes  its  council  to  act  against  that 
which  comes  within  the  legal  notion  of  a  nuisance,  but  such 
power,  conferred  in  general  terms,  cannot  be  taken  to  author- 
ize the  extra-judicial  condemnation  and  destruction  of  that  as 
a  nuisance  which,  in  its  nature,  situation,  or  use,  is  not  such.4 

sively  to  the  next  of  kin,  and  includes  the  right  to  select  and  change  the 
place  of  sepulture  at  pleasure.  3.  If  place  of  burial  is  taken  for  public  use 
the  next  of  kin  may  claim  indemnity  for  expense  of  removing  and  suitably 
re-interring  their  remains  :  Matter  of  Beekman  street,  4  Bradf.  (N.  Y.)  503, 
532,  1856 ;  Bogert  v.  City  of  Indianapolis,  13  Ind.  134,  1859,  per  Perkins,  J. 
See,  also,  Matter  of  Brick  Church,  3  Edw.  Ch.  Rep.  (N.  Y.)_  155. 

1  Beurojohn  v.  Mayor,  &c.  27  Ala.  58,  1855. 

2  New  Orleans  v.  St.  Louis  Church,  11  La.  An.  244,  1856 ;  Musgrove  v. 
Same,  10  ib.  431 ;  Lake  View  v.  Letz,  44  111.  81, 1867. 

3  Bogert  v.  Indianapolis,  13  Ind.  134,  1859. 

4  Crosby  v.  Warren,  1  Eich.  (South  Car.)  385  ;  Roberts  v.  Ogle,  30  111.  459 ; 
Salem  v.  Railroad  Company,  98  Mass.  431 ;  Dingley  v.  Boston,  100  Mass. 
544 ;  Van  Dyke  v.  Cincinnati,  5  Disney,  532  ;  Lake  View  v.  Letz,  44  111.  81  ; 
Wreford  v.  People,  14  Mich.  41, 1865;  States.  Jersey  City,  5  Dutch.  (N.  J.) 


318  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

Speaking  upon  this  subject  in  a  very  recent  case,  where  a  city, 
under  authority  to  prevent  and  restrain  encroachments  on 
rivers  running  through  it,  commenced  summary  proceeding  to 
remove  a  private  wharf,  an  eminent  judge  uses  this  language  : 
"  But  the  mere  declaration  by  the  city  council,  that  a  certain 
structure  was  an  encroachment  or  obstruction,  did  not  make  it 
so,  nor  could  such  declaration  make  it  a  nuisance  unless  it  in 
fact  had  that  character.  It  is  a  doctrine  not  to  be  tolerated  in 
this  country,  that  a  municipal  corporation,  without  any  gener- 
al laws  either  of  the  city  or  of  the  state,  within  which  a  given 
structure  can  be  shown  to  be  a  nuisance,  can,  by  the  mere 
declaration  that  it  is  one,  subject  it  to  removal  by  any  person 
supposed  to  be  aggrieved,  or  even  by  the  city  itself.  This 
would  place  every  house,  every  business,  and  all  the  property 
in  the  city,  at  the  uncontrolled  will  of  the  temporary  local 
authorities." ' 

170.  That  which  is  authorized  by  legislative  authority  cannot  be  declared 
a  nuisance  by  a  city  corporation :  lb.  The  power  to  abate  nuisances  is  a 
portion  of  police  authority  necessarily  vested  in  the  corporations  of  all  pop- 
ulous towns :  Kennedy  v.  Phelps,  10  La.  An.  227,  per  Buchanan,  J.  May 
pass  ordinances  to  prevent  as  well  as  remove :  Gregory  v.  Railroad  Com- 
pany, 40  N.  Y.  273.  A  city  held  to  have  no  power  to  destroy  a  dam  across 
a  creek  within  its  limits  as  a  nuisance  :  Clark  v.  Mayor,  &c.  of  Syracuse,  13 
Barb.  32. 

1  Per  Miller,  J.,  Yates  v.  Milwaukee,  10  Wall.  497,  1870 ;  Underwood  v. 
Green,  42  N.  Y.  140.  A  person  sick,  even  with  a  contagious  disease,  in  his 
own  house  or  at  a  hotel  is  not  a  nuisance  :  Boom  v.  Utica,  2  Barb.  104, 1848. 

Works  that  amount  to  a  private  nuisance,  causing  actual  damage  to  pri- 
vate persons,  cannot  be  justified,  under  a  license  from  the  city  council,  to 
erect  them.  But  the  fact  of  such  license  is  evidence  of  great  but  not  con- 
clusive weight  in  favor  of  the  party  erecting  and  owning  the  works 
claimed  to  be  a  nuisance :  Ryan  v.  Copes,  11  Bich.  (South  Car.)  Law,  217, 
1858.  A  pig  sty  in  a  populous  place  is,  per  se,  a  nuisance  :  Commissioners  v. 
Vansickle,  Bright  (Pa.)  R.  69.  IAiiery  stable  in  a  town  is  not,  per  se,  a  nui- 
sance ;  it  depends  upon  its  location  and  the  manner  in  which  it  is  built, 
kept,  or  used :  Aldrich  v.  Howard,  7  Rh.  Is.  87 ;  Burditt  v.  Swenson,  17 
Texas,  489,  1856 ;  Dargan  v.  Waddell,  9  Ire.  (Law)  244  ;  Kirkman  v.  Handy, 
11  Humph.  (Tenn.)  406 ;  Coker  v.  Birge,  10  Geo.  336.  Brick  making :  Wan- 
stead,  &c.  v.  Hill,  13  C.  B.  (N.  S.)  479.  Slaughter  house :  Dubois  v.  Budlong, 
10  Bosw.  (N.  Y.)  700 ;  20  N.  J.  Eq.  415.  Powder  house,  with  large  quantities 
of  powder  therein,  located  in  a  city,  is  a  nuisance  :  Cheatham  v.  Shearn,  1 
Swan  (Tenn.),  213,  216 ;  Durnesnil  v.  Dupont,  18  B.  Mon.  800.  Planing  mill  : 
Rhodes  v.  Dunbar,  57  Pa.  St.  274.  As  to  gas  works :  Cleveland  v.  Gas  Light 
Co.  20  N.  J.  Eq.  201.    Stock  yards:  lb.  296 ;    Ashbrook  v.  Commonwealth,  1 


CH.  XII.]     ORDINANCES    RELATING   TO    PUBLIC    HEALTH,    AC.  319 

§  309.  Power  to  municipal  corporation  to  make  "  by-laws 
relative  to  nuisances  generally,"  has  been  decided  to  authorize 
an  ordinance  prohibiting  the  keeping,  in  any  manner  what- 
soever, of  a  bowling  alley  for  gain  or  hire,  such  a  place  being  a 
public  nuisance  at  common  law.1  So,  under  power  to  pass  by- 
laws to  prevent  and  remove  nuisances,  an  ordinance  may  be 

Bush  (Ky.),  139.  In  Louisiana,  where  the  civil  code  (Art.  655)  provides  that 
works,  &c,  causing  annoyance  "  shall  be  regulated  by  the  rules  of  police  or 
the  customs  of  the  place"  where  located,  an  ordinance  of  a  city  council  or- 
dering a  blacksmith  shop  to  be  closed,  as  a  nuisance,  is  authorized  by  law, 
and  may  be  carried  into  effect  by  an  injunction,  procured  by  the  city  in  its 
corporate  name,  restraining  the  owner  from  continuing  the  shop  :  New  Or- 
leans v.  Lambert,  14  La.  An.  247, 1859. 

Power  of  municipal  corporation  to  remove  nuisances,  and  how  far  their 
decision  as  to  fact  of  nuisance  is  conclusive :  Welch  v.  Stowell,  2  Doug. 
(Mich.)  332  ;  Kennedy  v.  Board  of  Health,  2  Pa.  St.  366  ;  Commissioners  v. 
Vansickle,  Bright  (Pa.),  69 ;  Green  v.  Savannah,  6  Geo.  1 ;  Roberts  v.  Ogle, 
30  111.  459 ;  Clark  v.  Mayor,  &c.  13  Barb.  32;  Saltonstall  v.  Banker,  8  Gray) 
195  ;  Kennedy  v.  Phelps,  10  La.  An.  227;  Green  v.  Underwood,  42  N.  y! 
140. 

1  Tanner  v.  Albion,  5  Hill  (N.  Y.),  121,  1843  ;  followed,  Updyke  v.  Camp- 
bell, 4  E.  D.  Smith,  570,  1855  ;  The  People  v.  Sargeant,  8  Cow.  139,  which 
held  that  a  room  kept  for  the  playing  of  billiards  was  not  a  public  nuisance, 
though  a  profit  was  made  of  it,  commented  on  and  distinguished,  and  by 
Cowen,  J.,  doubted  in  5  Hill,  supra.  Whether  a  ball  alley  could  be  prohibited 
under  the  general  authority  to  pass  by-laws  relative  to  good  government,  &c, 
was  alluded  to,  but  not  determined:  See  Jackson  v.  People,  9  Mich.  Ill ; 
Smith  v.  Madison,  7  Ind.  86.  In  the  State  v.  Hull,  32  N.  J.  158,  1867,  it  was 
held  that  a  ten-pin  alley  kept  for  gain  and  public  use  in  a  town  is  not,  per 
se,  a  nuisance.  The  law  on  the  subject  is  very  fully  examined  in  the  opin- 
ion of  Beasley,  C.  J.,  and  the  case  of  Tanner  v.  Albion,  supra,  reviewed  and 
disapproved.  Where  a  city  has,  by  its  charter,  the  power  to  determine 
whether  bowling  alleys  shall  be  allowed,  and,  if  so,  under  what  restrictions, 
an  ordinance  requiring  them  to  be  closed  at  a  certain  hour  is  valid  :  State 
v.  Hay,  29  Maine  (16  Snep.),  457,  1849;  State  v.  Freeman,  38  N.  H.  426. 
Under  authority  to  pass  such  ordinances  as  the  council  "  may  consider  fit 
and  proper  to  remove  nuisances  or  causes  of  disease,"  &c,  it  was  held  that 
the  city  of  Savannah  might  prohibit  the  growing  of  rice  within  the  corpor- 
ate limits,  as  being  injurious  to  the  health  of  the  city,  and  abate  the  same, 
and  that  such  an  ordinance  was  valid  as  a  police  regulation :  Green  v.  Sa- 
vannah, 6  Geo.  1,  1849.  Where  proceedings  in  respect  to  nuisances  are  in- 
stituted by  order  of  the  city  council,  chancery  will  not  enjoin  or  interfere, 
"  unless  the  municipal  corporation  have  clearly  transcended  their  powers :  " 
Kennedy  v.  Phelps,  10  La.  An.  227,  1855  (building  for  curing  hides) ;  S.  P. 
Milne  v.  Davidson  (private  hospital),  5  Martin  (La.),  586, 1827. 


320  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

passed  inflicting  a  fine  on  any  person  who  should  exhibit  a 
stud-horse  in  the  streets  of  the  corporation.1 

§  310.  Power  "  to  suppress  bawdy  houses,"  gives  the  cor- 
poration  authority,  by  implication,  to  adopt,  by  ordinance,  the 
proper  means  to  accomplish  the  end ;  and  among  the  methods 
which  may  be  adopted,  is  one  forbidding  the  owners  of  houses 
from  renting  or  letting  the  same  for  this  purpose,  or  with 
knowledge  that  they  are  to  be  thus  used.2  But  power  to  the 
common  council  of  a  city,  "to  make  all  such  by-laws  as  it  may 
deem  expedient  for  effectually  preventing  and  suppressing 
houses  of  ill-fame,"  does  not  authorize  the  council  to  decide 
that  a  given  house  is  kept  for  that  purpose,  nor  if  kept  for 
that  purpose,  does  it  authorize  the  council  to  order  it  to  be  de- 
molished ;  nor  if  thus  demolished,  will  it  justify  the  officers 
of  the  city  who  did  it,  in  execution  of  the  ordinance  and  reso- 
lution of  the  council.3 

§  311.  A  city  charged  by  law  with  the  duty  of  preventing 
obstructions  of  a  river  within  its  limits,  may,  by  its  own  act, 
and  without  proceeding  by  indictment,  abate  or  remove  any- 
thing which  obstructs  the  free  and  public  use  of  the  river, 
such  as  i  floating  store-house,  calculated  to  remain  stationary  in 
the  water,  and  which  exclusively  occupies  a  portion  of  the 

1  Nolin  v.  Mayor,  4  Yerg.  (Tenn.)  163,  1833.  Under  power  "to  prevent 
and  remove  nuisances,"  a  corporation  may,  if  a  vacant  building  is  so  used 
as  to  endanger  by  fire  the  property  of  others,  or  the  health  of  the  commu- 
nity, declare  the  same  a  nuisance  and  notify  owner  to  abate  it,  and  if  he 
fails,  the  individual  officers  of  the  corporation  who  abate  the  nuisance  may, 
on  being  individually  sued,  justify  the  act :  Harvey  v.  Dewoody,  18  Ark. 
252,  1856. 

2  Childress  v.  Mayor,  &c.  3  Sneed  (Tenn.),  347,  1855.  Power  to  make  by- 
laws relative  to  nuisances,  gives  authority  to  impose  penalties  on  the  keep- 
ers of  houses  of  ill-fame,  and  on  persons  owning  houses  used,  with  their 
knowledge,  for  this  purpose :  McAlister  v.  Clark,  33  Conn.  91,  1865.  See 
Ely  v.  Supervisors,  36  N.  Y.  297;  Shafer  v.  Mumma,  17  Md.  331, 1861.  In 
prosecutions  for  keeping  bawdy  houses,  the  law,  it  has  been  said,  so  far  re- 
laxes the  ordinary  rule,  that  common  reputation  as  to  the  character  of  the 
defendants,  and  of  the  houses  which  they  keep,  is  admissible:  State  v.  Mc- 
Dowell, Dudley  (South  Car.),  Law,  346. 

3  Welch  v.  Stowell,  2  Doug.  (Mich.)  332,  1846. 


CH.  XII.]     ORDINANCES   RELATING   TO    PUBLIC    HEALTH,    AC.  321 

river,  such,  a  structure  being  a  public  nuisance.1  It  is  no 
answer  to  this  right  of  abatement  that  room  enough  is  left  for 
the.  public,  or  that  the  structure  is  beneficial;2  or  that  the 
party  erecting  it  is  the  owner  of  the  adjacent  lots.3 

§  312.  But  under  the  power  to  abate  nuisances,  property 
lawfully  erected  and  existing,  or  a  house  which  is  only  a  nui- 
sance because  occupied  by  a  business  which  is  such,  cannot  be 
destroyed  or  demolished.  The  public  can  proceed  by  indict- 
ment, or  the  business  carried  on  in  the  house  suppressed.4 

§  313.  Markets,  and  of  the  Power  to  Establish  and  Regulate. — 
The  states,  under  their  police  power,  may  delegate  to  munici- 
pal corporations  the  authority  to  establish,  or  authorize  the 
establishment  of,  markets;  and  it  is  competent  to  such  corpora- 
tions, under  proper  grants  of  power,  to  enact  ordinances  for- 
bidding sales  and  purchases  of  marketable  articles,  except  at 
designated  market  places.  The  extent  of  the  power  possessed 
by  a  particular  corporation  depends  upon  its  charter.  In 
England  the  regulation  of  markets  by  by-laws  has  long  been 

1  Hart  v.  Mayor,  &c.  of  Albany,  9  Wend.  571,  1832;  a  valuable  and  very 
carefully  considered  case  ;  affirming  S.  C.  3  Paige  Ch.  E.  213;  People  v.  "Van- 
derbilt,  28  N.  Y.  396.  See  Dutton  v.  Strong,  1  Black,  23.  The  corporate 
body  may  abate  or  remove  the  nuisance ;  but  without  express  authority  can- 
not ordain  a  forfeiture  of  the  structure,  or  seize  and  sell  it,  or  convert  the 
materials  to  their  own  use :  9  Wend.  571,  609,  supra. 

2  Ib.  Eespublica  v.  Caldwell,  1  Dallas,  150;  King  v.  Eussel,  6  East,  427; 
King  v.  Cross,  3  Camp.  224 ;  King  v.  Jones,  3  Camp.  229. 

3  Hart  v.  Mayor,  &c.  9  Wend.  571,  608;  Strange  E.  1247;  3  Bac.  Abr.  686; 
1  Hawk.  P.  C.  363,  note  1. 

*  Clark  v.  Syracuse,  13  Barb.  32;  Welch,  v.  Stowell,  2  Doug,  (Mich.)  382, 
1'846.  When  equity  will  interfere  to  prevent  and  remove  nuisances  which 
affect  the  public  generally:  People  v.  St.  Louis.  5  Gilm.  (111.)  372;  Hoole  v. 
Attorney-General,  22  Ala.  190 :  Attorney-General  v.  Gas  Company,  19  Eng. 
Law  and  Eq.  639;  Aldrich  v.  Howard,  7  Rh.  Is.  87;  Zabriskie  v.  Eailroad 
Company,  2  Beasley  Ch.  (N.  J.)  314;  Jersey  City  v.  Hudson,  ib.  420;  Dur 
mesnil  v.  Dupont,  18  B.  Mon.  8Q0, 1857.  A  city  council  may,  by  resolution, 
direct  its  officers  to  proceed  against  a  specified  establishment  as  a  nuisance, 
and  cause  the  same  to  be  abated  under  a  general  ordinance  of  the  corpo- 
ration ;  this  is  a  different  thing  from  passing  an  ordinance  inflicting  a  fine 
upon  a  particular  person  for  keeping  a  nuisance,  which  cannot  be  lawfully 
done:  Kennedy  v.  Phelps,  10  La.  An.  227,  1855.  See  Commonwealth  v. 
Goodrich,  13  Allen,  545;  Municipality  v.  Blineau,  3  ib.  688. 
41 


322  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

exercised,  and  such  by-laws  are  sustained  as  being  reasonable, 
and  conducive  to  the  health  and  good  government  of  the  mu- 
nicipality.1 In  tbis  country  the  practice  is  almost  universal  on 
the  part  of  the  legislature  to  confer  upon  the  municipal 
agencies  more  or  less  authority  with  respect  to  markets  and 
market  places,  and  such  grants  are  not  so  strictly  construed  as 
those  which  invest  the  corporation  with  powers  of  a  more  ex- 
traordinary or  unusual  character — at  least  such  is  the  case 
unless  a  monopoly  in  favor  of  private  individuals  is  sought  to 
be  sustained,  against  whicb  the  courts  strongly  lean.2 

1  Pierce  v.  Bartra.u,  Cowp.  270 ;  Player  4.  Jenkins,  1  Sid.  284 ;  Rex  v. 
Cottrell,  1  B.  &  Ad.  67, 1817.  See,  also,  Mosley  v.  Walker,  7  Barn.  &  Cress. 
40 ;  Mayor,  &c.  o.  Pedley,  4  Barn.  &  Adol.  397 ;  Grant  on  Corp.  166,  as  to 
exclusive  privileges,  in  England  as  to  markets  and  market  tolls.  Defini- 
tion.—  A  market  is  a  franchise  or  liberty  derived  from  the  crown,  by 
grant,  or  prescription  which  presupposes  a  grant :  2  Black.  Com.  37.  "  It  is 
a  designated  place  in  a  town  or  city  to  which  all  persons  can  repair  who 
wish  to  buy  or  sell  articles  there  exposed  for  sale :  "  Per  Breese,  J.,  Caldwell 
v.  Alton,  33  111.  416. 

"  A  municipal  market  consists :  1.  In  a  place  for  sale  of  provisions  and  arti- 
cles of  daily  consumption.  2.  Convenient  fixtures.  3.  A  system  of  police 
regulations,  fixing  market  hours,  making  provisions  for  lighting,  watching, 
cleaning,  detecting  false  weights  and  unwholesome  food,  and  other  arrange- 
ments calculated  to  facilitate  the  intercourse  and  insure  the  honesty  of 
buyer  and  seller.  4.  Proper  officers  to  preserve  order  and  enforce  obedi- 
ence to  the  rules : "  Per  Lane,  C.  J.,  Cincinnati  v.  Buckingham,  10  Ohio,  257, 
1840. 

*  Wartman  v.  Philadelphia,  33  Pa.  St.  202,  209,  1854 ;  LeClaire  v.  Daven- 
port, 13  Iowa,  210  ;  White  v.  Kent,  11  Ohio  St.  550 ;  St.  John  v.  Mayor,  &c. 
of  New  York,  6  Duer,  315 ;  Ash  v.  People,  11  Mich.  347 ;  St.  Louis  v.  Jack- 
son, 25  Mo.  37 ;  St.  Louis  v.  Weber,  44  Mo.  547,  1869  ;  Nightingale's  Case,  11 
Pick.  168 ;  Congot  v.  New  Orleans,  16  La.  An.  21 ;  Buffalo  v.  Webster,  10 
Wend.  99 ;  Yates  v.  Milwaukee,  12  Wis.  673 ;  Bethune  v.  Hughes,  7  Geo. 
560  ;  Ketchum  v.  Buffalo,  14  N.  Y.  356  ;  Municipality  v.  Cutting,  4  La.  An. 
336;  New  Orleans  ».  Guillotte,  12  La.  An.  818  (corporate  partnership  with 
individuals) ;  State  v.  Lieber,  11  Iowa,  407  ;  Dubuque  v.  Miller,  11  Iowa, 
583 ;  Municipality  v.  Cutting,  4  La.  An.  335 ;  Morano  v.  Mayor,  2  La.  218  ; 
St.  Paul  v.  Coulter,  12  Minn.  41 ;  Atlanta  v.  White,  33  Geo.  229. 

The  power  to  establish  and  regulate  markets,  like  most  other  municipal 
powers,  is  a  continuing  one,  and  markets  once  established  may  be  abandoned 
or  changed  at  the  pleasure  of  the  corporation,  and  the  tax  payers  or  proper- 
ty owners  cannot  restrain  the  action  or  determination  of  the  council  en- 
trusted by  the  charter  with  the  exercise  of  the  power :  Gall  v.  Cincinnati, 
18  Ohio  St.  563, 1869. 


CH.  XII.]  ORDINANCES    RELATING   TO    MARKETS,    &C.  323 

§  314.  Power  to  Build  and  Establish. —  Incorporated  cities 
and  towns  may  have  the  power  to  build  market  houses  with- 
out an  express  grant.  Thus  it  has  been  held,  that  a  town  hav- 
ing authority  "  to  make  by-laws  for  managing  and  ordering  its 
j>rudential  affairs,"  has  power  —  the  court  looking  somewhat  to 
usage  and  custom  to  ascertain  what  subjects  of  common  inter- 
est are  embraced  under  the  term,  "prudential," — to  appropri- 
ate money  for  the  erection  of  a  market  house,  and  to  raise  the 
amount  by  taxation.  This  power,  it  was  admitted,  more  clear- 
ly exists  in  the  case  of  large  towns  and  populous  villages.1 

§  315.  Power  conferred  upon  a  municipalty  "  to  establish 
and  regulate  markets,"  authorizes,  as  a  necessary  incident, 
"the  purchase  of  ground  upon  which  to  erect  a  market  build- 
ing.2 If  the  title  to  land  purchased  for  the  erection  of  a  mar- 
ket house  be  taken  by  the  municipal  corporation  in  fee,  no 
length  of  use  of  the  same  for  a  market  will  dedicate  it  for  mar- 
ket purposes ;  and  the  markets  may  be  abandoned  or  changed 
at  the  will  of  the  council,  and  the  land  thus  acquired  and  held 
be  sold.3  It  is  incident  to  the  general  power  to  /build  a  mar- 
ket to  determine  upon  the  form,  dimensions,  and  style  of  the 
edifice,  and  therefore  to  employ  an  architect  to  prepare  plans, 
specifications,  &c.4 

1  Spaulding  «.  Lowell,  23  Pick.  71, 1839.  If  the  real  and  principal  object 
is  the  building  of  a  market  house,  the  appropriation  of  a  portion  of  the 
building  for  other  purposes,  as  the  holding  of  courts,  does  not  render  the 
erection  of  the  building  illegal.  If,  however,  the  building  of  the  market 
house  is  merely  colorable,  that  is,  done  for  the  purpose  of  accomplishing 
distinct  and  unauthorized  objects,  it  would,  says  Chief  Justice  Shaw,  proba- 
bly be  treated  as  an  abuse  of  power  and  a  nullity  :  lb.    Ante,  p.  135. 

2  Ketchum  v.  Buffalo,  14  N.  Y.  356 ;  17  N.  Y.  449 ;  Caldwell  v.  Alton,  33  111. 
416.  It  is  immaterial  whether  this  power  is  conferred  in  express  or  direct 
terms,  or  given  only  as  part  of  the  power  to  make  by-laws,  ordinances,  &c. : 
Per  Selden,  J.,  in  Ketchum  v.  Buffalo,  14  N.  Y.  356,  362.  Purchase  of  land  for 
market :  People  v.  Lowber,  28  Barb.  65 ;  S.  C.  more  fully,  7  Abb.  Pr.  Rep.  158. 

3  Gall  v.  Cincinnati,  18  Ohio  St.  563,  1869. 

*  Peterson  v.  Mayor,  &c.  of  New  York,  17  N.  Y.  449,  1858.  His  unauthor- 
ized employment  by  a  committee  is  ratified  by  a  resolution  of  the  council 
passed  with  notice  of  the  facts,  adopting  his  plans,  drawings,  &c,  and  he 
may  recover  of  the  city  for  the  labor  and  service  of  preparing  them :  lb. 


324  MUNICIPAL  corporations:  [ch.  XII. 

§  316.  But  power  to  a  municipal  corporation  to  establish 
markets  and  build  market  houses  will  not  give  the  authority 
to  build  them  on  a  public  street.  Such  erections  are  nuisances 
though  made  by  the  corporation,  because  the  street,  and  the 
whole  street,  is  for  the  use  of  the  whole  people.  They  are 
nuisances  when  built  upon  the  streets,  although  sufficient 
space  be  left  for  the  passage  of  vehicles  and  persons.  Such 
erections  may,  it  seems,  be  legalized  by  an  express  act  of  the 
legislature.  But  unless  so  legalized,  a  nuisance  erected  and 
maintained  by  a  public  corporation  may  be  proceeded  against, 
criminally  or  otherwise,  the  same  as  if  erected  by  private 
persons.1 

§  317.  Every  municipal  corporation  which  has  power  to 
make  by-laws  and  establish  ordinances  to  promote  the  general 
welfare,  and  preserve  the  peace  of  a  town  or  city,  may  fix  the 
time  or  places  of  holding  public  markets  for  the  sale  of  food,  and 
make  such  other  regulations  concerning  them  as  may  conduce 
to  the  public  interest.2  The  right  to  establish  a  market 
includes  the  right  to  abandon  it,  or  shift  it  to  another  place 
when  the  public  convenience  demands  it,  and  of  this  the  coun- 
cil is  the  judge.3 

§  318.  Nature  of  Power  to  Establish  and  Regulate. —  A  city 
corporation  was  invested  by  its  charter  with  power  "  to  erect 
market  houses,  to  establish  markets  and  market  places,  and  to 
provide  for  the  government  and  regulation  thereof,"  and  it 
was  at  first  decided  by  the  Supreme  Court  of  the  state  that  this 
did  not  authorize  the  corporation  to  pass  an  ordinance  dele- 
gating to  an  individual  the  right  to  erect  market  houses,  and  to 
charge  rent  for  the  use  of  the  stalls  therein,  reserving  to  itself 

'  Wartman  v.  Philadelphia,  33  Pa.  St.  202,  210,  1854 ;  St.  John  v.  New 
York,  3  Bosw.  (N.  Y.)  483 ;  State  v,  Mobile,  5  Port.  279,  1837  ;  Common- 
wealth v.  Bush,  14  Pa.  St.  (2  Harris)  186;  Commonwealth  v.  Bowman,  3  Pa. 
St.  (3  Barr.)  202,  206.    See  chapter  on  Streets,  post. 

2  Per  Black,  C,  J,,  Wartman  »,  Philadelphia,  33  Pa.  St.  202,  209, 1854.  Note 
his  observations  in  this  cgee  upon  the  necessity  and  convenience  of  mar- 
kets. 

3  lb.  "  The  right  to  establish  markets  js  a  branch  of  the  sovereign  power, 
and  the  right  to  regulate  them  is  BiSGiessarily  a  power  of  municipal  police : " 
per  Eustes,  C.  J.,  Municipality  V,  Cutting,  4  La,  An.  335. 


CH.  XII.]  ORDINANCES   RELATING   TO    MARKETS,    AC.  325 

no  power  to  control  the  same,  and  that  the  corporation  could  not 
compel  persons  to  go  to  such  markets;  but  subsequently 
this  ruling  was  reversed,  and  it  was  held  that  such  an  ordi- 
nance was  valid,  and  that  the  city  had  the  power  to  authorize 
the  erection  of  market  houses  by  an  individual,  and  to  declare 
the  same  a  public  market,  and  to  covenant  to  protect  the  own- 
er in  the  exclusive  privilege  thereof;  and  that  the  city  was 
liable  for  failing  to  protect  him  by  the  passage  of  the  requi- 
site ordinances,  he  having,  on  the  faith  of  the  ordinance, 
erected  an  expensive  market  house.1 

§  319.  Construction  of  Special  Powers  in  Relation  to  Markets. 
Power  to  make  "  by-laws  relative  to  the  public  markets,"  &c, 
while  it  would  not  authorize  a  corporation  entirely  to  prohibit 
the  sale  of  meats,  &c,  within  its  limits,  because  this  would  be 
in  general  restraint  of  trade,  will  nevertheless  authorize  a  by- 
law forbidding  the  hawking  about  or  selling  by  retail  meats,  &c, 
except  at  the  public  markets  and  within  certain  limits  about 

1  LeClaire  v.  Davenport,  13  Iowa,  210,  1862 ;  overruling,  Davenport  v. 
Kelly,  7  Iowa,  102.  It  may  be  suggested  that  trie  right  to  pass  such  an  or- 
dinance, and  the  liability  for  failing  to  pass  others,  may  admit,  at  least,  of 
fair  debate,  in  view  of  the  surrender  of  a  city  of  its  charter  powers,  and  its 
inability  in  law  to  make  binding  contracts  with  reference  to  the  future  ex- 
ercise of  its  legislative  authority.  In  the  Kelly  case,  supra,  the  point  was 
decided,  and  is  not  overruled,  that  the  charter  power  to  establish  markets, 
&c,  conferred  upon  the  council  the  authority  to  prohibit  the  exposing  and 
offering  for  sale  meat  at  any  other  places  than  those  the  ordinance  desig- 
nated: Ash  v.  People,  11  Mich.  347;  Hatch  v.  Pendergast,  15  Md.  251. 

A  city  in  granting  a  license  and  selling  to  a  party  the  right  to  occupy  a 
stall  in  the  city  market  does  not  impliedly  contract  to  protect  the  lessee  from 
competition  by  unlicensed  persons ;  nor  can  such  a  contract  be  implied 
against  the  corporation  from  the  existence  of  an  ordinance  prohibiting  the 
same  ;  and  the  failure  of  the  officers  of  the  corporation,  though  willful,  to 
enforce  the  ordinance  against  unlicensed  sellers,  is  no  defence  to  a  bond 
given  by  the  lessee  for  the  payment  of  stall  rent :  Peck  v.  Austin,  22  Texas, 
261,  1858.  Nor  does  a  city  owning  and  leasing  a  market  house  impliedly 
engage  or  covenant  that  it  will  not  exercise  its  power  to  establish  markets  . 
by  erecting  other  market  houses  and  leasing  them  to  others ;  if  it  does  so, 
the  injury  to  the.  first  lessees  is  damnum  absque  injuria:  Congot  v.  New  Or- 
leans, 16  La.  An.  21.  1861.  As  to  duty  of  corporation  where  they  sell  or 
farm  out  an  exclusive  privilege  to  vend  articles,  to  enforce  ordinances  de- 
signed to  protect  the  privilege  :  La  Rosa  v.  Mayor,  4  La.  24 ;  Same  v.  Same, 
1  ib.  126;  Mayor,  &c.  v.  Pe^yroux,  6  Martin  (La.),  155;  Griffin  ».  Mayor,  5 
Martin  (La.),  279. 


326  MUNICIPAL    CORPORATIONS.  [CH.  XII. 

the  same.1  The  courts  differ  somewhat  in  their  construction 
of  the  extent  of  the  power  to  establish  and  regulate  markets,  as 
will  be  seen  by  the  cases  cited  in  the  note.2 

1  Buffalo  v.  Webster,  10  Wend.  100,  1833.  Chief  Justice  Sacage  affirms, 
arguendo,  that  such  an  ordinance  would  be  valid  under  the  common  law 
power  of  corporations  to  make  by-laws  for  the  general  good  of  the  corpora- 
tion: 76.  Approving  Pierce  i>.  Bartram,  Cowp.  269  ;  following,  Bush  o.  Sea- 
bury,  8  Johns.  418,  1811,  and  distinguished  from  Dunham  v.  Rochester,  5 
Cow.  462 ;  Shelton  v.  Mobile,  30  Ala.  540, 1857.  "  The  fixing  the  place  and 
times  at  which  markets  shall  be  held  and  kept  open,''  says  the  Supreme 
Court  of  New  York  in  Bush  v.  Seabury,  8  Johns.  418,  "  and  the  prohibition 
to  sell  at  other  places  and  times,  are  among  the  most  ordinary  regulations 
of  a  city  or  town  police,  and  would  naturally  be  included  in  the  general 
power  to  pass  by-laws  relative  to  the  public  markets.  If  the  corporation 
had  not  the  power  in  question,  it  is  difficult  to  see  what  useful  purpose 
could  be  effected,  or  what  object  was  intended,  by  the  grant  of  power  to 
pass  laws  '  relative  to  the  public  markets.'  " 

2  Power  to  make  ordinances  concerning  "  markets,  health,  and  good  or- 
der" of  the  town,  authorizes  an  ordinance  prohibiting  the  sale  of  butcher's 
meat  within  the  corporate  limits,  excepting  at  the  public  market:  Wins- 
boro  v.  Smart,  11  Rich .  (South  Car.)  Law,  551, 1858.  It  seems  the  defendant  was 
convicted,  though  he  sold  the  meat  inside  his  own  blacksmith  shop.  Such 
ordinances  are  sustained,  says  the  court,  on  the  ground  that  they  are  not 
in  restraint  of  trade,  but  a  proper  regulation  of  it :  lb.  So,  in  the  City  of 
St.  Louis  v.  Jackson,  25  Mo.  37,  1857,  where  it  appeared  that  the  city,  under 
proper  authority,  had  erected  a  public,  or  city,  market  house,  and  that  by 
its  charter  it  had  power,  also,  "  to  regulate,"  by  ordinance,  the  sale  of  meats, 
it  was  held  that  this  gave  the  city  authority  to  provide,  by  ordinance,  that 
"  no  person,  not  a  lessee  of  a  stall  in  the  market,  shall  sell,  or  offer  for  sale, 
meat  in  less  quantities  than  one  quarter.''  The  court  considered  such  an 
ordinance  as  reasonable,  highly  proper,  and  not  in  restraint  of  trade,  and 
not  embraced  in  the  reasoning  in  the  case  of  Dunham  o.  Trustees  of 
Rochester,  5  Cow.  (N.  Y.)  462 ;  S.  P.  see,  also,  St.  Louis  v.  "Weber,  44  Mo. 
547,  1869  ;  LeClaire  v.  Davenport,  13  Iowa,  210 ;  Davenport  v.  Kelly,  7  Iowa, 
102 ;  Ash  v.  People,  11  Mich.  347.  But  in  Caldwell  v.  Alton,  33  111.  416, 1864, 
where  the  city,  by  its  charter,  had  power  "  to  establish  and  regulate  markets," 
and  under  the  power  passed  an  ordinance  forbidding,  during  market  hours, 
the  sale  of  vegetables  outside  the  limits  of  the  market,  it  was  held  that  the 
city  could  not  restrain  a  regular  dealer  or  merchant  from  vending  vegeta- 
bles at  his  place  of  business  outside  of  market  limits  during  any  part  of  the 
day,  such  a  restraint  of  trade  being  unreasonable.  The  court  reviewed 
many  of  the  cases  in  other  states  on  this  subject,  and  were  of  opinion  that 
the  power  to  regulate  could  only  extend  to  the  market  limits,  and  that 
these  limits  could  not,  under  this  power,  be  made  to  extend  throughout  the 
city.  The  court  adhered  to  its  views  in  a  subsequent  case  in  which  it  was 
held  that  power  "  to  erect  market  houses,  establish  markets  and  market 
places,  and  provide  for  the  government  and  regulation  thereof,"  does  not 


OH.  XII.]  ORDINANCES   RELATING   TO    MARKETS,    &C.  327 

§  320.  In  a  well  considered  case  in  Massachusetts  it  is  de- 
cided that  a  city  corporation  has  the  clear  right  to  prohibit,  by 
ordinance,  the  occupation  of  a  stand,  for  the  vending  of  com- 
modities, in  the  streets.  It  may  thus  prohibit  not  only  its  own 
inhabitants,  but  others.  It  may  make  the  prohibition  abso- 
lute, or  it  may  make  it  conditional  on  obtaining  license  or  per- 
mission. It  is  in  the  nature  of  a  police  regulation,  and  does 
not  violate  private  rights  or  improperly  restrain  trade.1 

authorize  the  council  of  a  large  and  growing  town  to  fix  upon  one  market 
place,  and  prohibit  all  persons  at  all  hours  of  th3  day  from  selling  fresh 
meats  elsewhere.  Such  an  ordinance  was  regarded  as  unreasonable,  in 
restraint  of  trade,  and  tending  to  create  a  monopoly.  It  was  admitted, 
however,  that  if  the  ordinance  had  fixed  a  reasonable  number  of  hours 
each  day  in  which  the  prohibition  should  operate,  leaving  persons  free  to 
sell  outside  of  market  hours,  it  would  probably  be  unobjectionable :  Bloom- 
ington  v.  Wahl,  46  111.  489,  1868.  So,  in  Bethune  v.  Hughes,  28  Geo.  560, 
1859,  the  court,  leaning  against  exclusive  privileges,  held  that  power  by 
the  charter  to  the  corporation  "  to  establish  and  keep  up  a  public  market  in 
the  city  for  the  sale  of,"  &c,  does  not  confer  upon  the  city  power  to  pass  an 
ordinance  prohibiting  the  sale  of  marketable  articles  elsewhere  than  at  the 
market  place :  S.  P.  St.  Paul  v.  Laidler,  2  Minn.  190,  1858 ;  commented  on 
and  disapproved  in  St.  Louis  v.  Weber,  44  Mo.  547,  1869 ;  see  St.  Paul  v. 
Coulter,  12  Minn.  41.  An  ordinance  regulating  the  killing  and  bleeding 
of  meats  is  authorized  by  power  to  regulate  butchers,  the  place  and  mode 
of  selling,  and  to  prevent  unlicensed  persons  from  acting  as  butchers :  City 
of  Brooklyn  v.  Cleves,  Hill  &  Denio,  Suppl.  231, 1843.  Under  power  to  reg- 
ulate the  vending  of  meats,  a  conviction  under  an  ordinance  forbidding  the 
sale  of  unwholesome  meats  and  other  provisions  cannot  be  sustained  for 
selling  putrid  eggs :  Mayor,  &c.  of  Rochester  v.  Rood,  Hill  &  Denio,  Suppl. 
146. 

1  Nightingale,  Petitioner,  &c.  11  Pick.  168,  1831.  In  this  case  the  ordi- 
nance of  the  city  (Boston)  provided  "  that  no  inhabitant  of  the  city  of  Bos- 
ton, or  of  any  town  in  the  vicinity  thereof,  not  offering  for  sale  the  produce 
of  his  own  farm,  &c,  should,  without  the  permission  of  the  clerk  of  Faneuil 
Hall  market,  be  suffered  to  occupy  any  stand  with  cart,  sleigh,  or  other- 
wise, for  the  purpose  of  vending  commodities  in  either  of  the  streets  men- 
tioned in  the  first  section  of  this  ordinance,"  &c.  It  was  objected  against 
this  ordinance  that  it  was  void :  1.  Because  it  was  partial,  not  operating 
upon  all  the  citizens  of  the  state  equally.  2.  Because  it  was  uncertain,  the 
term  "  vicinity  "  being  indefinite.  And,  3.  Because  it  was  in  restraint  of 
trade.  But  neither  of  these  objections  was  considered  tenable.  The  valid- 
ity of  such  an  ordinance  was  again  affirmed  by  the  same  court  in  Common- 
wealth v.  Rice,  9  Met.  253,  1845.  See  this  case,  also,  as  to  requisites,  in  cer- 
tain respects,  of  complaints  for  the  violation  of  such  an  ordinance,  and  as  to 
what  acts  will  be  deemed  to  be  violations :  Shelton  v.  Mayor,  &c.  of  Mobile, 
30  Ala.  540,  1857 ;  Wartman  v.  Philadelphia,  33  Pa.  St.  202,  1854.    An  ordi- 


328  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

§  321.  But  authority  to  erect  a  market,  and  power  "  to  reg- 
ulate the  general  police,"  and  "  to  preserve  the  peace  and  good 
order  of  the  city,"  do  not  authorize  the  corporation  to  impose 
a  tax  for  revenue  purposes  upon  persons  occupying  market 
stands  in  the  streets,  or  selling  produce  therein.  Such  a  power 
must  be  plainly  conferred  or  it  will  not  he  held  to  exist.1 

§  322.  The  right  to  regulate  markets  established  by  a  city 
under  its  charter  is  one  of  municipal  police.  The  city  author- 
ities may  say  what  articles  shall  or  shall  not  be  sold  at  the 
public  markets,  and  may  impose  penalties  on  those  who  violate 
their  ordinances.  They  may,  for  example,  prohibit  groceries 
and  oysters  from  being  sold  at  the  public  markets,  and  require 
oysters,  which  have  a  great  tendency  to  putrefaction,  to  be  sold 
at  certain  designated  stands,  and  prevent  their  being  sold  else- 
where.2 

§  323.  Inspection  Ordinances.  —  A  municipal  corporation, 
says  Mr.  Willcock,  may  regulate  the  manner  of  carrying  on 
trade  within  a  municipality  so  far  as  to  prevent  monopoly,  or 
the  sale  of  unfit  commodities,  and  to  insure  proper  conduct  in 
those  who  practice  it  within  their  jurisdiction.3  In  general,  it 
may  be  said,  that  incorporated  cities  and  larger  towns  in  this 
country  have  conferred  upon  them  the  power  to  pass  ordi- 
nance forbade  the  sale  of  fresh  meats  except  by  persons  licensed,  but  con- 
tained a  proviso  in  favor  of  farmers,  authorizing  them  to  sell  meats,  the 
produce  of  their  own  farms.  The  evident  object  was  considered  to  be  to 
protect  licensed  butchers,  and  at  the  same  time  to  allow  farmers  to  come  in 
and  sell  the  produce  of  their  own  farms.  It  was'  held  that  an  unlicensed 
butcher  was  not  a  "farmer  "  within  the  meaning  of  the  proviso,  although  the 
meats  which  he  sold  came  from  sheep  fattened  on  his  farm;  if  the  farm  was 
only  a  convenient  appendage  to  his  business  as  a  butcher :  Rochester  v. 
Pettinger,  17  Wend.  265,  1837. 

1  Kip  v.  Patterson,  2  Dutch.  (N.  J.)  298,  1857.  This  power,  it  was  said, 
would  authorize  "  the  renting  of  stalls  in  the  market  house,  and  perhaps  of 
even  prohibiting  sales  in  the  public  streets."    lb.  per  Elmer,  J. 

2  Municipality  v.  Cutting,  4  La.  An.  335,  1849 ;  Morano  v.  Mayor,  2  La. 
218.  Power  of  city  to  vacate  leases  and  stalls  in  public  market,  under  ordi- 
nance reserving  the  right,  see  City  Council  v.  Goldsmith,  2  Speer's  (South 
Car.)  Law.  428.  Occupant  of  city  market  failing  to  pay  rent  in  advance, 
according  to  contract,  held  a  tenant  at  mil :  Dubuque  v.  Miller,  11  Iowa, 
503.    Control  over  tenants  :  Wcelpper  v.  Philadelphia,  38  Pa.  St.  203. 

3  Willc.  Corp.  142,  pi.  332. 


CH.  XII.]  ORDINANCES    RELATING   TO    MARKETS,    AC.  329 

nances  regulating,  to  a  reasonable  extent,  the  mode  in  which 
the  traffic  of  the  place  shall  be  conducted ;  but  they  can  exer- 
cise no  powers  in  this  respect  not  conferred.1  Laws  requiring 
articles  to  be  inspected  or  weighed  and  measured  before  being 
sold,  are  in  the  nature  of  police  regulations,  and  are  valid  in 
the  absence  of  special  constitutional  provisions.  When 
reasonable  in  their  nature,  they  are  not  regarded  as  being  in 
restraint  of  trade.2 

§  324.  Power  to  a  city  "  to  regulate  the  public  market,  and 
to  pass  such  other  ordinances  as  shall  seem  meet  for  the  im- 
provement and  good  government  of  the  city,"  authorizes  an 
ordinance  requiring  oats,  hay,  &c,  to  be  weighed  by  the  public 
weighmaster  before  being  oft'ered  for  sale,  and  imposing  a 
penalty  for  its  violation.3 

1  Nightingale's  Case,  11  Pick.  108 ;  Stokes  v.  New  York,  14  Wend.  87 ; 
Kaleigh  v.  Sorrell,  1  Jones  (North  Car.),  Law,  49  ;  Chicago  v.  Quimby,  38111. 
274,1858;  Howe  v.  Norris,  12  Allen,  82;  Libby  v.  Downey,  5  Allen,  299; 
Collins  v.  Louisville,  2  B.  Mon.  134,  1841.  Power  to  appoint  measures  of 
wood,  and  affix  a  reasonable  allowance  to  them,  does  not  justify  the  impo- 
sition of  a  tax  for  revenue  :  lb. 

2  Cooley,  Const.  Lim.  596;  Raleigh  v.  Sorrell,  supra;  Stokes  v.  New  York, 
supra;  Page  v.  Fazakerly,  36  Barb.  392  ;  Mayor,  &c.  of  New  York  v.  Nichols, 
4  Hill  (N.  Y.),  209,  1843;  compare  Mayor  v.  Hyatt,  3  E.  D.  Smith,  156; 
Rogers  v.  Jones,  1  Wend.  287  ;  Yates  ®.  Milwaukee;  12  Wis.  673.  The  sys- 
tem of  inspection  laws,  and  the  hosts  of  officers  which  they  engendered,  were 
considered  by  the  constitutional  convention  of  New  York  to  entail  annoy  - 
ances  and  burdens  upon  the  community  sufficient  to  outweigh  any  benefits 
resulting  from  them ;  and  the  constitution  of  1846  (Art.  V.  Sec.  8)  abolished 
all  such  offices  and  forbade  the  legislature  to  re-create  them,  in  this  lan- 
guage: "All  offices  for  the  weighing,  measuring,  culling,  or  inspecting  of 
any  merehandise,  produce,  manufacture,  or  commodity  whatever,  are  here- 
by abolished,  and  no  such  offices  shall  hereafter  be  created  by  law."  See 
Tinkham  v.  Tapscott,  17  N.  Y.  144,  147,  1858,  where  the  origin,  scope,  and 
purpose  of  this  provision  are  very  satisfactorily  discussed  by  Denio,  J.  In 
Illinois  it  is  held  that  inspection  power  conferred  upon  a  board  of  trade,  to 
be  exercised  when  requested  by  its  members,  may  co-exist  with  like  power 
in  the  city  authorities  to  be  exercised  in  all  cases  when  requested :  Chicago 
i>.  Quimby,  38  111.  274,  1858. 

3  Raleigh  v.  Sorrell,  1  Jones  (North  Car.)  Law,  49,  1853 ;  approving  Night- 
ingale's Case,  11  Pick.  108 ;  Stokes  v.  Corporation  of  New  York,  14  Wend. 
87.  This  power  was  also  held  to  authorize  the  creation  of  the  office  of 
weighmaster  and  the  payment  of  his  salary :  1  Jones,  49,  supra.  Construc- 
tion of  ordinance  as  to  weighing  hay  on  public  scales:  Goss  v.  Corporation, 

42 


330  MUNICIPAL    CORPORATIONS.  [CH.  XII. 

§  325.  A  grant  to  the  common  council  of  "  all  powers, 
rights,  &c,  incident  to  municipal  corporations  and  necessary 
to  the  proper,government  of  the  same,"  might  authorize  a 
city  to  prevent  the  sale  of  bread  made  out  of  unwholesome 
flour,  and,  as  a  consequence,  to  provide  for  its  inspection,  but 
it  would  not  give  the  power  to  regulate  the  assize,  that  is,  the 
weight  and  price  of  bread,  for  the  latter  is  a  power  not  abso- 
lutely necessary  for  the  proper  government  of  a  city.  Power, 
however,  to  a  city,  "  to  regulate  everything  which  relates  tg 
bakers,"  does  authorize  an  ordinance  regulating  the  weight, 
size,  and,  it  seems,  the  price,  of  bread,  and  the  forfeiture  of 
bread  illegally  baked ;  and  such  an  ordinance,  it  has  been  held, 
is  not  in  violation  of  any  provision  of  the  constitution  of  Lou- 


§  826.  Police  Regulations  Respecting  the  Public  Peace  and  Safe- 
ty. —  Our  city  governments  usually  possess  the  power,  either 
by  express  grant  or  by  virtue  of  their  authority  to  make  by- 
laws relating  to  the  public  safety  and  good  order  of  the  inhab- 
itants, to  regulate  the  rate  of  speed  of  travel  in  the  public  streets  ; 
the  route  or  streets  over  which  omnibuses,  stage-coaches, 
drays,  &c,  may  run ;  the  time  of  day  in  which  the  streets  may 
be  used  for  certain  purposes;  to  interdict  stoppages  in  the 
street  to  the  delay  of  others ;  to  exclude  vehicles  of  all  kinds 
from  entering  upon  or  passing  over  the  sidewalks,  &c,  &c. 
The  public  safety  and  convenience  may  require  regulations  of 
this  character;  but  they  must  not,  unless  made  by  virtue  of 
specific  authority,  be  unreasonable  or  improperly  in  restraint 
of  trade.2 

&c.  4  Sneed  (Term.),  62 ;  Yates  v.  Milwaukee,  12  Wis.  673.  Construction  of 
statute  as  to  mode  of  measuring  grain :  Frazier  v.  Warfield,  13  Md.  279.  Of 
ordinance  as  to  survey  of  lumber  before  sale :  Briggs  v.  Boat,  7  Allen,  287. 

1  Guillotte  v.  New  Orleans,  12  La.  An.  432,  18S7  ;  Page  v.  Fazakerly,  36 
Barb.  392.  But  as  to  forfeiture,  qussre,  in  absence  of  express  power,  and  see 
Phillips  v.  Allen,  41  Pa.  St.  481 ;  Mayor,  &c.  of  Mobile  v.  Yuille,  3  Ala.  139- 

8  Commonwealth  v.  Stodder,  2  Cush.  562,  1848,  where  the  subject  of  the 
power-of  cities  over  streets,  particularly  in  reference  to  omnibuses,  is  fully 
considered  by  Mr.  Justice  Dewey;  Commonwealth  v.  Robertson,  5  Cush. 
438,  1850,  as  to  stoppages  in  streets  contrary  to  ordinance ;  Baker  v.  City  of 
Boston,  12  Pick.  184, 1831 ;  Vanderbilt  v.  Adams,  7  Cow.  349  ;  lb.  385 ;  Aus- 
tin v.  Murray,  16  Pick.  126.    Power  to  a  city  "  to  regulate  the  running  of  rail- 


OH.  XII.]  RESPECTING   PUBLIC    PEACE    AND    SAFETY.  331 

§  327.  Under  a  general  power  to  make  "  needful  and  salu- 
tary by-laws,"  a  city  ordinance  of  Boston,  requiring  the  tenant 
or  occupant,  or,  in  case  there  shall  be  no  tenant,  the  owners  of 
buildings  bordering  on  certain  streets,  to  clear  the  snow  from  the 
sidewalks  adjoining  their  respective  buildings,  is  reasonable  and 
valid.  It  was  objected  against  this  ordinance  that  it  violated 
the  fundamental  maxim,  that  all  burdens  and  taxes  laid  upon 
the  people  for  the  public  good  shall  be  equal.  The  objection 
was  overruled.  And  it  was  justly  regarded  by  the  court  as  in 
the  nature  of  a  police  regulation,  requiring  a  duty  to  be  per- 
formed highly  salutary  and  advantageous  to  the  citizens  of  a 
populous  and  closely  built  city,  and  imposed  upon  the  persons 
named  because  they  are  so  situated,  as  that  they  can  promptly 
and  conveniently  perform  it ;  and  it  is  laid  not  upon  a  few,  but 
upon  a  numerous  class,  and  equally  upon  all  who  are  within 
the  description  composing  the  class  and  who  commonly  derive 
a  peculiar  benefit  from  the  duty  required.  It  would  doubtless 
be  otherwise  if  the  ordinance  arbitrarily  imposed  this  duty 
upon  the  mechanics,  or  merchants,  or  any  other  class  of  citi- 
zens between  whose  convenience  and  the  labor  required  there 
is  no  natural  relation.1 

§  328.  The  power  to  make  "  salutary  by-laws,"  with  respect 
to  the  use  of  streets,  will,  it  seems,  authorize  a  city  to  pass  by- 
laws regulating  the  removal  of  buildings,  and  the  temporary  use 
of  the  streets  and  highways  for  that  purpose.2 

road  cars,"  authorizes  the  adoption  of  an  ordinance  prohibiting  the  propul- 
sion of  cars  by  steam  within  the  corporate  limits :  Railroad  Company  v. 
Buffalo,  5  Hill  (N.  Y.),  209,  1843.    Post,  chapter  on  Streets. 

A  by-law  prohibiting  rapid  driving  in  the  streets  of  a  city  by  carters  and 
others  is  not  in  restraint  of  trade,  and  is  reasonable  and  valid ;  and  in  a 
prosecution  for  its  violation,  it  is  not  necessary  to  prove  that  any  individual 
was  actually  endangered  by  the  fast  driving.  As  the  mayor  and  aldermen 
have  no  authority  to  give  a  person  permission  to  violate  an  ordinance,  evi- 
dence of  such  permission,  as  well  as  evidence  of  the  defendant's  general 
character  as  a  careful  driver,  is  inadmissible :  Commonwealth  v.  Worcester, 
3  Pick.  462,  1826 ;  Commonwealth  v.  Stodder,  2  Cush.  562,  570,  1848  ;  Wash- 
ington v.  Nashville,  1  Swan,  177.    Post,  chapter  on  Streets. 

1  Goddard,  Petitioner,  &c.  16  Pick.  504,  1835 ;  Union  Eailway  Company 
v.  Cambridge,  11  Allen,  287  ;  Kirby  v.  Boylston  Market  Association,  14  Gray, 
252. 

2  Day  v.  Green,  4  Cush,  433,  437,  per  Shaw,  C.  J.  And  where  such  a  by- 
law prohibits  the  moving  without  a  license  granted  by  the  mayor  and  alder. 


832  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

§329.  Ordinances  under  Police.  Power  and  General  Welfare 
Clause.  —  Other  illustrations  of  what  a  municipal  corporation 
may  do  under  the  general  welfare  clause  in  its  organic,  act,  or 
under  its  police  power  or  its  implied  right  to  pass  by-laws,  or 
under  a  general  grant  of  authority  for  that  purpose,  may  be 
here  given. 

Under  authority  "  to  ordain  and  publish  such  acts,  laws,  and 
regulations,  not  inconsistent  with  the  constitution  and  laws  of 
the  state  as  shall  be  needful  to  the  good  order  of  the  city,"  it 
can,  says  Howard,  J.,  "  subject  to  these  restrictions  and  certain 
statute  regulations,  establish  all  suitable  ordinances  for  admin- 
istering the  government  of  the  city,  the  preservation  of  the 
health  of  the  inhabitants,  and  the  convenient  transaction  of 
business  within  its  limits,  and  for  the  performance  of  the  gen- 
eral duties  required  by  law  of  municipal  corporations."  1 

§  330.  Power  to  pass  such  ordinances  "  to  maintain  the 
peace,  good  government,  and  order  of  the  city,  and  the  trade 
commerce  and  manufactures  thereof,  as  the  council  may  deem 
expedient,  not  repugnant  to  the  constitution  and  laws  of  the 
state,"  authorizes  an  ordinance  prohibiting  the  keeping  open 
of  stores,  shops,  and  places  of  business  on  Sunday,  if  its  provis- 
ions do  not  conflict  with  state  legislation.2    But  the  general 

men,  a  license  granted  by  the  mayor  is  void,  even  though  the  board  of 
aldermen,  by  a  vote,  had  previously  undertaken  to  delegate  the  power  to 
grant  such  licenses  to  the  mayor  alone.  The  by-law  contemplates  that  the 
mayor  and  aldermen  should  act  unitedly  as  one  body  :  lb. 

1  Per  Howard,  J.,  State  v.  Merrill,  37  Maine  (2  Heath),  329,  1853.  Such 
would  undoubtedly  be  the  proper  construction  if  this  were  the  only  power 
given  to  the  city  to  pass  ordinances  or  by-laws.  It  should  then  be  some- 
what liberally  construed.  But  if  such  a  general  grant  is  given  in  connec- 
tion with,  or  at  the  end  of,  a  long  list  of  specific  powers,  perhaps  so  ex- 
tended a  construction  might  not  then  be  due  to  it.  The  power  conferred  by 
general  welfare  clause  is  restricted  by  reference  to  other  provisions  of  the 
charter  or  constituent  act :  City  Council  v.  Plank  Road  Company,  31  Ala. 
76,  1857 ;  Mount  Pleasant  v.  Breeze,  11  Iowa,  399,  400,  1860,  per  Wright,  J. 

2  St.  Louis  v.  Cafferata,  24  Mo.  94,  1856 ;  ,  see  State  v.  Cowan,  29  ib.  330  ; 
State  v.  Ams  (constitutionality  of  Sunday  laws  affirmed),  20  Mo.  214;  S.  P. 
Frolichstein  v.  Mobile,  40  Ala.  725,  1867  ;  Hudson  v.  Geary,  4  Rh.  Is.  485, 
1857 :  Specht  v.  Commonwealth,  8  Pa.  St.  312  ;  Cincinnati  v.  Rice,  15  Ohio, 
225.  In  the  case  of  the  City  Council  v.  Benjamin,  2  Strob.  (South  Car)  Law, 
508, 1846,  it  was  decided  by  the  Court  of  Appeals  of  South  Carolina,  that  an 


CH.  XII.]    ORDINANCES  UNDER  GENERAL  WELFARE  CLAUSE.  333 

welfare  clause  does  not  authorize  a  city  to  construct,  or  aid  in 
constructing,  a  flank  road  or  toll  bridge  built  by  a  private  com- 
pany beyond  the  corporate  limits  of  the  city.1 

§  331.  The  general  welfare  clause  to  pass  ordinances  for  the 
good  government,  &c,  of  the  corporation,  does  not  authorize 
an  ordinance  requiring  the  proprietor  of  a  theatre,  circus,  or 
other  exhibition  licensed  by  the  corporation,  to  pay  a  peace  or 
police  officer  of  the  place  two  dollars,  or  any  sum,  for  each 
night's  attendance  upon  such  place  for  the  purpose  of  enforcing 
order.  Such  an  ordinance  is  unreasonable,  and  can  only  be 
passed  when  clearly  authorized. ? 

§  332.  Where  a  city  corporation  is  authorized  "  to  ordain 
such  laws  not  inconsistent  with  the  constitution  and  laws  of  the 
state  as  shall  be  needful  to  the  good  order  of  the  city,"  it  may 
pass  an  ordinance  imposing  a  penalty  upon  any  person  who 
shall  mutilate  or  destroy  any  ornamental  tree  planted  in  the  streets, 
lanes,  or  other  public  places  within  the  limits  of  the  city." 
Such  an  ordinance  is  not  inconsistent  with  a  state  law  punish- 
ing the  malicious  or  wanton  destruction  of  trees  growing  for  or- 
nament or  use.  Under  the  ordinance  it  is  not  necessary  to 
allege  or  prove  that  the  mutilation  was  malicious  or  wanton, 

ordinance  of  the  city  of  Charleston,  prohibiting  "public  exposures  for  sales, 
or  sales  of  merchandise,  on  Sunday,"  was  not  a  violation  of  that  section  of 
the  state  constitution  which  declares  that  "  the  free  exercise  and  enjoyment 
of  religous  profession  or  worship,  without  discrimination  or  preference, 
shall  forever  hereafter  be  allowed  within  this  state  to  all  mankind."  In 
that  case  the  defendant  was  a  Jew,  and  the  city  was  not  denied  to  be  pos- 
sessed of  all  the  power  on  the  subject  which  the  legislature  could  constitu- 
tionally bestow.  In  the  case  of  Columbia  v.  Duke  and  Marks,  cited  2 
Strob.  530,  and  approved,  a  similar  decision  was  made  at  nisi  prim  by  Mr. 
Justice  Martin.  And  in  this  last  case  it  was  further  ruled,  that  power  in 
the  charter  "  to  establish  such  by-laws  as  may  tend  to  the  quiet,  peace, 
safety,  and  good  order  of  the  inhabitants,"  authorized  the  passage  of  such 
an  ordinance.  Under  "full  power  to  pass  such  ordinances  as  the  city  council 
shall  deem  expedient  for  the  government  of  the  city,  not  contrary  to  the 
constitution  of  the  state  or  the  United  States,"  a  city  may  prohibit,  within 
its  limits,  the  sale  of  liquor  on  Sunday :  Megowan  v.  Commonwealth,  2  Met. 
(Ky.)  3,  1859. 

1  City  Council  v.  Plank  Road  Company,  31  Ala.  76, 1857.  Ante,  Sec.  106. 

2  Waters  v.  Leech,  3  Ark.  110, 1840.    Supra,  Sec.  253. 


334  MUNICIPAL   CORPORATIONS  [CH.  XII. 

and  it  would  seem  to  be  considered  that  it  was  no  defence  that 
the  tree  alleged  to  be  mutilated  was  upon  the  street  in  front  of 
the  lot  of  the  accused,  who  owned,  subject  to  the  public  ease- 
ment, ad  medium  filum  vice.1 

§  333.  Under  a  general  power  to  pass  "  any  other  by-laws 
for  the  well-being  of  the  city,"  its  council  may,  by  ordinance, 
prohibit  saloons,  restaurants,  and  other  places  of  public  enter- 
tainment, to  be  kept  open  after  ten  o'clock  at  night.  The  ob- 
jections that  such  a  by-law  was  unreasonable,  and  deprived  the 
citizen  of  the  constitutional  right  of  "  acquiring  property," 
were  not  considered  to  be  well  taken.  It  regulates,  but  does 
not  deprive  the  party  of  his  rights.2 

§  334.  Power  "  to  regulate  the  police  of  the  city,"  and  to 
„  pass  ordinances  not  inconsistent  with  law,  authorizes  an  ordi- 
nance for  arresting  and  fining  vagrants,  although,  by  the  general 
law  of  the  state,  vagrants  may  be  proceeded  against  before  a 
justice  of  the  peace,  the  court  considering  that  this  did  not  for- 
bid the  corporation  from  making  a  local  regulation  on  the 
same  subject  not  in  conflict  with  the  general  law.3 

1  State  v.  Merrill,  37  Maine  (2  Heath),  329,  1853.  This  would  seem  to  be 
a  quite  liberal  construction  of  the  words  good  order.  But  it  is  necessary 
that  cities  should  have  such  an  authority,  and  the  power  to  pass  the  ordi- 
nance could,  perhaps,  be  sustained  as  incidental  to  the  power  of  the  city 
over  its  streets  and  public  places.    Post,  chapter  on  Streets. 

z  The  State  v.  Freeman,  38  N.  H.  426,  1859  ;  following  and  approving  on 
this  point,  State  v.  Clark,  8  Fost.  (N.  H.)  176;  Morris  v.  Rome,  10  Geo. 
532,  1851 ;  Hudson  v.  Geary,  4  Rh.  Is.  485,  1857.  "  It  is  an  unavoidable 
consequence  of  city  ordinances,  that  they  in  some  degree  interfere  with  the 
unlimited  exercise  of  private  rights :  "  Per  Bell,  J.,  in  State  v.  Freeman,  38 
N.  H.  428. 

3  St.  Louis  v.  Bentz,  11  Mo.  61,  1847  ;  distinguished  from  Jefferson  City  v. 
■Courtmire,  9  ib.  692,  which  was  a  summary  proceeding  for  an  indictable 
offence.  See  State  v.  Cowan,  29  Mo.  330 ;  Byers  v.  Commonwealth,  42  Pa. 
St.  89,  per  Strong,  J. ;  Shafer  v.  Mumma,  17  Md.  331,  1861.    Supra,  Sec.  302. 

A  statute  by  which  "  two  or  more  overseers  of  the  town  "  were  authorized 
to  commit  to  the  workhouse  until  discharged  by  law,  by  writing  under  their 
hands,  to  be  there  employed  and  governed  according  to  the  rules  and  or- 
ders of  the  house,"  &c,  "  all  persons,  able  of  body  to  work,  and  not  having 
estate  or  means  otherwise  to  maintain  themselves,  who  refuse  or  neglect  to 
do  so,  live  a  dissolute,  vagrant  life,  and  exercise  no  ordinary  calling  or  law- 
ful business  sufficient  to  gain  an  honest  livelihood,"  does  not  violate  the 


CH.  XII.]  GENERAL   WELFARE   CLAUSE   CONTINUED.  335 

§  335.  By  virtue  of  its  police  power,  a  municipal  corpora- 
tion may  pass  an  ordinance  imposing  a  fine  upon  the  owner  of 
any  animal  found  estray  or  at  large  within  the  limits  of  the  cor- 
poration.1 

§  336.  If  a  municipal  corporation  has,  by  its  charter,  power 
to  pass  ordinances  to  preserve  the  peace  and  good  order  of  the 
place,  this  gives  it  authority  to  provide  for  the  punishment,  in 
the  manner  allowed  by  its  charter,  of  persons  who  shall  rescue, 
or  attempt  to  rescue,  ■prisoners  from  the  custody  of  the  munici- 
pal officers.2  But  the  general  power,  though  expressly  con- 
ferred, to  enact  by-laws  for  the  good  government  of  the  town, 
does  not  confer  the  power  to  levy  taxes  of  any  kind,  not  even 
upon  retailers  of  ardent  spirits.3 

§  337.  General  Welfare  Clause  Continued.  —  The  general 
welfare  clause,  in  a  charter  empowering  the  city  council  to 
pass  such  other  ordinances  as  appear  necessary  for  the  security 
of  the  city,  authorizes  an  ordinance  regulating  the  mode  of 
keeping  and  sale  of  gunpowder  within  the  limits  of  the  corpora- 
tion, such  as  requiring  all  gunpowder  brought  into  the  city  to 
be  conveyed  to  the  public  magazine  of  the  city,  except  when 
it  is  to  be  retailed,  and  then  to  be  kept  in  limited,  quantities 

constitutional  right  to  "life  and  liberty,"  or  the  right,  in  "  criminal  pro- 
ceedings, to  be  heard  by  counsel,  confronted  with  witnesses,"  &c.  The 
court  did  not  regard  it  as  a  criminal  proceeding,  but  as  a  reformatory  or 
correctional  one,  so  far  as  the  person  proceeded  against  was  concerned,  and 
designed  to  protect  the  community  from  becoming  chargeable  with  the  per- 
son's support :  Adeline  Nott's  Case,  11  Maine,  208,  1834 ;  S.  P.  Portland  v. 
Bangor,  42  Maine,  403,  1856,  Rice,  J.,  dissenting.  See  Byers  v.  Common- 
wealth, 42  Pa.  St.  89.  In  a  late  case  in  Illinois,  the  Supreme  Court  of  that 
state  decided  that  the  act  creating  the  Reform  School  was  unconstitutional, 
and  that  the  act,  so  far  as  it  restrained  liberty  for  any  cause  except  actual 
crime,  was  in  violation  of  the  Bill  of  Eights  :  People  v.  Turner,  10  Am.  Law 
Reg.  (N.  S.)  366,  and  approving  note  of  Judge  Redfield. 

1  Municipality  v.  Blanc,  1  La.  An.  385,"  1846;  Case  v.  Hall,  21  111.  632; 
Commonwealth  v.  Bean,  14  Gray,  52 ;  Commonwealth  v.  Curtis,  9  Allen,  266 ; 
Roberts  v.  Ogle,  30  111.  459 ;  McKee  v.  McKee,  8  B.  Mon.  433,  1848.  Supra, 
Sec.  282. 

2  Independence  v.  Moore,  32  Mo.  392, 1862. 

3  Commissioners  of  Ashville  v.  Means,  7  Ire.  (Law)  406,  1847 ;  Ex  parte 
Burnett,  30  Ala.  461,  1857.    Post,  Chap.  XIX. 


t 


336  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

and  in  secure  canisters.  And  it  was  •  so  held,  notwithstanding 
the  point  was  made  in  argument  that  the  general  welfare 
clause  in  the  charter  could  not  enlarge  the  powers  of  the  cor- 
poration further  than  is  necessary  to  carry  into  effect  the  spe- 
cific grants  of  power.1 

§  338.  Municipal  corporations,  with  power  to  provide  for 
the  safety  of  their  inhabitants,  may  prohibit  the  throwing  of 
heavy  or  dangerous  articles,  from  the  upper  stories  of  buildings, 
into  the  streets  or  open  spaces  near  them,  where  persons  are  in 
the  habit  of  passing;  and  may  establish  fire  limits,  and  prevent 
erection  therein  of  wooden  buildings.2 

§  339.  Under  authority  to  make  police  regulations,  or  to 
pass  by-laws  for  the  good  rule  and  government  of  the  corpora- 
tion, it  has  the  power  to  require  hoistways  inside  of  stores  (usually 
places  of  public  resort)  to  be  enclosed  by  a  railing,  and  closed 
by  a  trap  door  after  business  hours  each  day.  It  was  justly 
regarded  as  a  reasonable  police  regulation  not  unnecessarily 
interfering  with  private  rights.3 

1  Williams  v.  Augusta,  4  Geo.  509,  1848  ;  Frederick  v.  Augusta,  5  ib.  561, 
where  the  charter  of  Augusta  is  more  fully  given. 

2  City  Council  v.  Elford,  1  McMullen  (South  Car.)  Law,  234, 1841 ;  Brady 
v.  Insurance  Company,  11  Mich.  425 ;  Douglass  v.  Commonwealth,  2  Rawle, 
262 ;  Wadleigh  v.  Gilman,  12  Maine,  403 ;  Vanderbilt  v.  Adams,  7  Cow.  349, 
352,  per  Woodruff,  J.,  arguendo.  Instance  of  a  want  of  power  to  restrict 
erection  of  wooden  buildings :  Mayor,  &c.  v.  Thome,  7  Paige,  261.  Cities 
may  constitutionally  be  authorized  to  prevent  the  erection  of  wooden  build- 
ings in  certain  portions  thereof :  Respublica  v.  Duquet,  2  Yeates  (Pa.),  493. 
In  Wadleigh  v.  Gilman,  supra,  it  was  decided  that  the  removal  of  a  wooden 
building  to  the  prohibited  district,  or  even  from  one  part  of  the  district  to 
another,  was  within  the  meaning  of  the  term,  erection,  as  used  in  the  ordi- 
nance. "The  mischief,"  says  Weston,  C.  J.,  "did  not  consist  in  the  act  of 
erecting,  but  in  the  continuance  of  the  erection.  The  ordinance  did  not 
meddle  with  erections  as  they  stood ;  this  would  have  transcended  their 
power."  Difference  between  "  erecting  "  and  "  repairing :  "  Brady  v.  Insu- 
rance Company,  11  Mich.  425,  449,  opinion  of  Campbell,  J. ;  Brown  v.  Hunn, 
27  Conn.  332  ;  Booth  v.  State,  4  Conn.  65 ;  Tuttle  v.  State,  ib.  68  ;  Stewart  v. 
Commonwealth,  10  Watts,  307.  Remedy  against  wrong-doer,  by  private 
action  in  favor  of  an  adjoining  owner  specially  injured  by  a  violation  of  a 
statute  in  relation  to  the  erection  of  wooden  buildings :  Aldrich  v.  Howard, 
7  Rh.  Is.  199. 

3  Mayor,  &c.  of  New  York  v.  Williams,  15  N.  Y.  502,  1859.  Johnson,  J., 
observes :  "  The  danger  is  not  confined  to  the  owner  and  ordinary  occu- 


CH.  XII.]  MODE    OF    ENFORCING   ORDINANCES.  337 

§  340.  Power  "to  prevent  disturbances  and  disorderly  as- 
semblages, and  maintain  the  good  government  of  the  city," 
authorizes  it  to  take  measures  to  preserve  the  peace  and  to  pro- 
tect the  lives  and  property  of  the  citizens,  and  the  acts  of  the 
city  in  procuring  a  loan  of  arms  and  giving  a  bond  for  their 
return,  are  valid  and  binding  upon  it.1  Authority  to  preserve 
the  peace  and  quiet  of  the. place  authorizes  an  ordinance  for- 
bidding "  all  disorderly  shouting,  dancing,  &c,  in  the  streets  and 
public  places,"  though  such  conduct  violates  no  existing  state 
law.2 

Mode  of  Enforcing  Ordinances. 

§  341.  Civil  Actions  and '  Complaints.  —  In  the  old  corpora- 
tions in  England,  by-laws  were  usually  made  in  virtue  of  their 
implied  power ;  they  did  not  extend  to  matters  criminal  in 
their  nature,  and  could  only  be  enforced,  unless  by  virtue  of  a 
statute  or  valid  custom,  by  tines  or  pecuniary  penalties  com- 
monly for  a  small  sum,  and  always,  or  almost  always,  in  a 
fixed  or  certain  amount.3  So,  by  the  Municipal  Corporations 
Act  of  1835,  the  council  are  empowered  to  make  such  by-laws 
as  to  them  shall  seem  most  for  the  good  rule  and  government 
of  the  borough,  and  for  the  prevention  and  suppression  of  all 
such  nuisances  as  are  punishable  by  act  of  parliament  in  force 

pants  of  the  building.  The  ordinance,  in  that  respect,  stands  on  the  same 
footing  as  a  regulation  prohibiting  a  well  or  cistern  in  a  man's  yard  unpro- 
tected by  curb  or  cover,  the  reasonableness  of  which  could  not  be  doubted. 
In  case  of  fire,  these  openings  would  tend  directly  and  powerfully  to  allow 
the  fire  to  extend  through  all  parts  of  the  building,  and,  if  left  uncovered, 
would  also  tend  to  endanger  those  whom  duty  might  require  to  enter  to 
effect  the  extinguishment  of  the  fire."  Paige,  J.,  considered  the  ordinance 
the  same  in  principle  as  fire  laws,  prescribing  the  heighth,  thickness  of 
walls,  and  materials  of  building  within  the  city. 

1  State  v.  Buffalo,  2  Hill  (N.  Y.),  434,  1842 ;  New  Orleans  v.  Costello,  14 
La.  An.  37. 

2  Washington  v.  Frank,  1  Jones  (N.  C.)  Law,  436, 1854.  As  to  what  regu- 
lations of  this  kind  are  necessary,  "  much,"  says  the  court,  "  must  be  left  to 
the  judgment  and  discretion "  of  the  corporate  authorities :  lb.  State  v. 
Bell,  13  Ire.  (Law)  373.    Post,  Chap.  XIII. 

3  Gee  v.  Wilden,  Lutw.  1320,  1324;  Wood  v.  Searl,  Bridg.  139 ;  Piper  u. 
Chappell,  ,  14  M.  &  W.  624 ;  Bawlinson  on  Corp.  665,  note.  See  post,  chap- 
ter on  Municipal  Courts. 

43 


338  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

in  the  borough,  and  to  appoint,  by  such  fines  as  they  shall 
deem  necessary  for  the  prevention  and  suppression  of  such 
offences,  with  the  proviso  that  no  fine  shall  exceed  the  sum  of 
five  pounds.1  The  act  provides  that  prosecutions  for  a  breach 
of  by-laws  made  under  it,  shall  be  commenced  within  three 
months  after  the  commission  of  the  offence ;  that  the  charge 
shall  be  made  on  oath ;  that  a  summons  shall  issue  and  be 
served,  with  power  to  the  magistrate  to  proceed  without  the 
appearance  of  the  defendant,  or  to  issue  a  warrant  for  his  ar- 
rest ;  that  if  convicted,  the  penalty  shall  be  paid  either  imme- 
diately or  within  such  period  as  the  magistrate  shall  think  fit ; 
that  it  may  be  levied  by  distress  and  sale  of  the  goods  and 
chattels  of  the  offender,  and  for  want  of  sufficient  distress  the 
offender  may  be  imprisoned  for  a  term  not  exceeding  one 
month,  the  imprisonment  to  cease  upon  payment  of  the  sum 
due.4  It  is  suggested  that  the  remedy  thus  prescribed  is  cu- 
mulative, and  will  not  debar  the  corporation  from  availing 
itself  of  the  usual  common  law  mode  of  enforcing  a  by-law  by 
action  of  debt  or  assumpsit.3  But  the  point  seems  not  to  have 
been  yet  adjudged. 

§  342.  Aside  from  statutory  regulation,  the  general  method 
of  enforcing  a  by-law  in  England  is,  as  just  stated,  by  bringing, 
in  the  name  of  the  proper  party  or  corporation,  an  action,  in 
the  proper  court,  against  the  person  who  has  violated  the  by- 
law, to  recover  the  penalty  which  it  imposes,  and  this  action 
may  be  either  debt  or  assumpsit.  By  the  common  law, 
assumpsit  may  be  maintained  for  the  breach  of  any  duty 
which  the  defendant  has  been  legally  liable  to  perform  in 
favor  of  the  plaintiff,  the  law  implying  a  promise  to  perform 
the  particular  act,  and  hence  no  principle  was  violated  in  hold- 
ing that  assumpsit  would  lie  to  recover  the  penalty  of  a  by- 
law.    As  the  penalty  was  tor  a  sum  certain,  and  was  consid- 

1  5  and  6  Will.  IV.  Chap.  LXXVI.  Sec.  90.    Ante,  p.  51. 

2  lb.  Sec.  91 ;  Sees.  127-133.    Supra,  Sec.  271. 

3  Eawlinson  on  Corp.  (5th  ed.)  167,  note.  See  Adley  v.  Beeves,  2  Maule 
&  Sel.  61 ;  Bodwic  v.  Fennell,  1  Wils.  233.  On  the  other  hand,  Mr.  Grant  is 
of  opinion  that  the  remedy  prescribed  by  the  act  is  exclusive,  and  super- 
sedes the  common  law  remedy  of  debt  or  assumpsit  for  the  amount  of  the 
fine  or  penalty :  Grant  on  Corp.  364.    Supra,  Sees.  271-275. 


CH.  XII.]  MODE    OF   ENFORCING   ORDINANCES.  339 

ered  to  be  in  the  nature  of  liquidated  damages,  an  action  of 
debt  would  also  lie  to  recover  the  amount  of  the  penalty ;  but 
where  the  by-law  itself  provided  that  the  penalty  should  be  re- 
covered by  debt,  then  that  form  of  action  alone  could  be  main- 
tained. But,  aside  from  statute  authority  or  a  valid  custom, 
it  was  not  competent  for  the  by-law  to  provide  that  its  penalty 
should  be  recovered  by  "distress  and  sale"  of  goods,  that 
being  contrary  to  the  common  law.1 

§  343.  In  this  country,  the  courts  hold  that  where  the  mode 
of  enforcement  is  prescribed  by  the  charter,  that  mode  must 
be  pursued ; 2  but  if  the  mode  or  form  of  action  is  not  pre- 
scribed, then  the  recovery  of  the  penalty  or  fine  for  the  viola- 
tion of  a  municipal  ordinance  may  be  as  at  common  law,  by  an 
action  of  debt  or  assumpsit,  or  where  these  forms  are  abro- 
gated, by  a  civil  action  in  substance  the  same.3  And  where 
such  an  action  is  brought,  the  proceeding  is  civil  and  not  crim- 
inal, and  the  rules  of  procedure  in  civil  cases,  unless  otherwise 

1  Willc.  164-181 ;  1  Saund.  PI.  and  Ev.  683 ;  2  Wheat.  Selw.  1178 ;  2 
Chitty  PI.  401,  where  form  of  declaration  in  debt  is  given ;  Adley  v.  Reeves, 
2  M.  &  S.  60.  The  law  implies  a  promise  on  the  part  of  a  corporator  to  pay 
all  penalties  incurred  for  his  violation  of  by-laws ;  and  if  the  mode  of  en- 
forcing such  penalties  is  not  pointed  out,  the  corporation  may  sue  therefor 
in  any  competent  court:  Columbia  v.  Harrison,  2  Const.  (South  Car.) 
Rep.  213,  per  Nott,  J.    Supra,  Sees.  270-280. 

2  Weeks  v  Foreman,  1  Harris.  (N.  J.)  237,  1837 ;  Ewbanks  v.  Ashley,  36 
111.  177,  4864;  Israel  v.  Jacksonville,  1  Scam.  (111.)  290;  Williamson  v.  Com- 
monwealth, 4  B.  Mon.  146,  151,  1843.  An  action  may  be  brought  for  the 
fines  and  penalties  incurred  for  the  violation  of  ordinances,  and  it  is  not 
necessary  that  the  fine  be  assessed  before  the  suit  is  brought:  King  v.  Jack- 
sonville, 2  Scam.  (111.)  306.  In  Weeks  v.  Foreman,  1  Harris.  (N.  J.)  237, 
1837,  it  was  held  that,  although  certain  corporate  officers  were  ex  officio  jus- 
tices of  the  peace  within  the  city,  with  power  to  take  cognizance  of  viola- 
tions of  by-laws,  they  could  not  entertain  or  try  actions  of  debt,  to  recover 
a  debt  or  penalty  for  a  breach  of  an  ordinance,  although  it  was  conceded 
that  they  had  jurisdiction  of  the  quasi  criminal  proceeding,  founded  upon  a 
complaint  or  information,  resulting  in  what  is  technically  called  a  convic- 
tion ;  but  qusere.    Supra,  Sees.  270-287. 

8  Ewbanks  v.  Ashley,  36  111.  178, 1864 ;  Israel  v.  Jacksonville,  1  Scam.  (111.) 
290 ;  Coates  v.  Mayor,  7  Cow.  585,  608,  1827.  Unless  it  is  otherwise  pro- 
vided by  statute  or  charter,  it  is  considered  that  corporations  have  an  in- 
herent power  to  provide  for  the  recovery  of  a  penalty  by  an  action  of  debt 
in  their  own  courts :  Hesketh  v.  Braddock,  3  Burr.  1858 ;  Barter  v.  Com- 
monwealth, 3  Pa.  (Pen.  &  W.)  253.    Supra,  Sec.  275. 


340  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

provided,  are  applicable  to  it.1  The  penalties  to  ordinances 
are  often  fixed  upon  a  movable  scale,  and  this  would  appear  to 
be  done  under  the  supposition  that  they  will  be  enforced,  not 
by  a  common  law  action  in  the  common  law  courts  to  recover 
the  amount  of  the  penalty,  but  by  a  complaint  or  proceeding 
before  the  proper  municipal  magistrate,  who  will,  within  the 
prescribed  limits,  determine  the  amount  of  the  fine  or  penalty 
to  be  paid  by  reference  to  the  circumstances  of  the  particular 
case. 

§  344.  Nature  of  Proceeding,  Civil  or  Criminal.  —  Where, 
instead  of  a  civil  action  to  recover  the  pecuniary  fine  or  pen- 
alty, the  proceeding  is  in  the  nature  of  a  complaint  for  the 
violation  of  the  ordinance,  this  has  sometimes  been  considered 
to  be  a  criminal  or  quasi  criminal,  and  not  a  civil,  proceeding. 
The  cases  on  this  subject,  however,  are  not  harmonious,  but 
the  difference  in  them,  to  some  extent,  depends  upon  the  char- 
acter of  the  act  or  offence  charged,  the  nature  of  the  charter, 
and  the  legislation  in  the  particular  state  as  to  extent  of  juris- 
diction intended  to  be  conferred  upon  the  municipal  authori- 
ties.2 The  constitution  of  Georgia  declares  that  "trial  by  jury, 
as  heretofore  used  in  this  state,  shall  remain  inviolate."  It 
.was  claimed  that  the  legislature  could  not  constitutionally  con- 
fer on  the  city  council  the  power  to  pass  an  ordinance  inflict- 
ing a  fine  for  its  violation  where  the  guilt  of  the  party  was  to 
be  tried  by  the  council,  without  a  jury.  The  court  held  that 
the  objection  was  not  sound,  observing  that  violations  of  ordi- 
nances are  not  criminal  cases  within  the  meaning  of  the  state 
constitution,  and  "that,  inasmuch  as  the  right  of  trial  by  jury 
existed  in  England,  and  was  seeured  by  Magna  Charia,  and 
municipal  corporations  in  that  country  enforced  their  by-laws 
by  pecuniary  penalties,  in  a  summary  manner,  and  the  same  right 
being  conferred  upon  similar  corporations  in  this  state  anterior 

\  lb.;  Municipality  v.  Cutting,  4  La.  An.  335  ;  Lewiston  v.  Proctor,  23  111. 
533,  1860;  Quincy  v.  Ballance,  30  111.185;  Davenport  v.  Bird,  Iowa. Supreme 
Court,  December  term,  1871  (not  yet  reported) ;  Williamson  v.  Common- 
wealth, 4  B.  Mon.  146,  151,  1843. 

2  Wayne  County  v.  Detroit,  17  Mich,  390 ;  People  v.  Detroit,  18  Mich.  445; 
Davenport  v.  Bird,  32  Iowa,  December  term,  1871  (not  yet  reported).  See 
chapter  on  Municipal  Courts,  post.    Supra,  Sees.  281, 300. 


CH.  XII.]  MODE    OF    ENFORCING    ORDINANCES.  341 

to  the  adoption  of  the  constitution,  and  constantly  exercised 
"the  right  of  trial  by  jury,  as  heretofore  used  in  this  state," 
was  not  violated  by  the  city  council  of  Augusta,  by  the  imposi- 
tion of  the  penalty  for  the  breach  of  the  local  police  regulations 
of  that  city."1 

§  345.  On  the  other  hand,  in  Massachusetts,  prosecutions 
for  breaches  of  by-laws  or  ordinances  made  to  enforce  police 
regulations  are  regarded  as  substantially  public  prosecutions, 
and  in  such  prosecutions  it  is  competent,  though  confessed  not 
to  be  very  just,  to  disallow  the  defendant  costs.  Applying 
this  doctrine,  it  is  held  that  a  statute  providing  that  prosecu- 
tions for  violations  of  city  ordinances  in  the  name  of  the  state 
or  commonwealth  is  not  unconstitutional,  notwithstanding  the 
result  is  that  the  defendant  does  not  recover  costs  on  acquit- 
tal.2 

1  Williams  v.  Augusta  (gunpowder  ordinance),  4  Geo.  509,  1848,  per 
Warner,  J.,  approving  Low  v.  Commissioners  of  Pilotage,  R.  M.  Charlt. 
(Geo.)  316;  Flint  Kiver  Steamboat  Company  v.  Foster,  5  Geo.  194;  Floyd  v. 
Commissioners,  &c.  14  Geo.  354 ;  Kip  v.  Patterson,  2  Dutch.  (N.  J.)  298 ; 
Keeler  v.  Milledge,  4  Zabr.  142 ;  Shafer  v.  Mumma,  17  Md.  331.  "  Summary 
convictions  for  petty  offences  against  statutes  were  always  sustained,  and 
they  were  never  supposed  to  be  in  conflict  with  the  common  law  right  to  a 
trial  by  jury : "  Per  Strong,  J.,  Byers  v.  Commonwealth,  42  Pa.  St.  89, 94, 1862. 
In  the  case  last  cited,  the  extent  of  the  right  of  jury  trial  at  common  law  is 
learnedly  examined  by  Mr.  Justice  Strong.  See,  also,  Dunsmore's  Appeal, 
52  Pa.  St.  374 ;  Khines  v  Clark,  51  Pa.  St.  96,  1865.  Compare,  Plimpton  v. 
Somerset,  33  Vt.  283,  1860.  See  post,  Municipal  Courts.  A  statute  requir- 
ing security  for  costs,  in  prosecutions  under  "penal  statutes,"  does  not  em- 
brace prosecutions  under  city  ordinances  which  impose  penalties  for  their 
violation,  such  ordinances  not  being  "statutes"  within  the  meaning  of  the 
act :  Lewistown  v.  Proctor,  23  111.  533,  1860 ;  S.  P.  Quincy  v.  Ballance,  30  ib. 
185.  And  see,  also,  Municipality  v.  Cutting,  4  La.  An.  335;  Ewbanks  v. 
Ashley,  36  111.  177;  Wayne  County  v.  Detroit,  17  Mich.  390;  People  v. 
Detroit,  18  Mich.  465,  construing  the  phrase  "penal  laws"  as  used  in  the 
Michigan  constitution.  Phrase  "  municipal  fine,"  in  the  constitution  of 
California,  construed :  People  v.  Johnson,  30  Cal.  98,  1866.  Violations  of 
ordinances  imposing  fines  or  penalties  are  in  the  nature  of  torts,  and 
actions  for  such  violations  may  be  prosecuted  against  one  or  more  of  the 
offending  parties  —  they  need  not  all  be  joined:  President,  &c.  v.  Holland, 
19  111.  271,  1857. 

2  Goddard,  Petitioner,  16  Pick.  504,  1835 ;  Commonwealth  v.  Worcester,  3 
Pick.  462.  "  If,"  says  Chief  Justice  Shaw,  in  the  case  first  cited,  "the  prose- 
tion  were  to  enforce  a  private  right  by  the  city,  there  would  be  weight  in 


342  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

§  346.  Mode  of  Pleading  Ordinances.  —  The  courts,  unless  it 
be  the  courts  of  the  municipality,  do  not  judicially  notice  the 
ordinances  of  a  municipal  corporation,  unless  directed  by  char- 
ter or  statute  to  do  so.1  Therefore,  such  ordinances,  when 
sought  to  be  enforced  by  action,  or  when  set  up  by  the  defend- 
ant as  a  protection,  should  be  set  out  in  the  pleading.  It  is 
not  sufficient  that  they  be  referred  to  generally  by  the  title  or 
section.  It  is,  however,  believed  to  be  sufficient,  in  the  ab- 
sence of  special  legislative  provision  prescribing  the  manner 
of  pleading,  to  set  forth  the  legal  substance  of  that  part  of  the 

the  objection,  and  it  would  stand  on  different  grounds:"  16  Pick.  508. 
See  Commonwealth  v.  Gray,  5  Pick.  44 ;  Commonwealth  v.  Fakey,  5  Cush. 
408.  Similar  observations  in  relation  to  making  sidewalks,  by  Ford,  J.,  in  _ 
Paxson  v.  Sweet,  1  Green  (N.  J.),  196,  200, 1832.  So,  in  New  Hampshire,  a 
public  prosecution  for  an  offence  made  penal  by  a  city  ordinance  because 
of  its  supposed  evil  consequences  to  society  — as,  for  example,  the  offence 
of  unlawfully  keeping  a  bowling  alley — is  considered  to  be  a  criminal,  and 
not  a  civil,  proceeding:  State  v.  Stearns,  11  Fost.  (N.  H.)  106, 1855.  Fink  v. 
Milwaukee,  17  Wis.  26,  1863,  is  decided  upon  the  basis  that  a  prosecution  of 
a  party  for  the  violation  of  a  city  ordinance,  where  the  penalty  is  a  fine,  is 
a  criminal  prosecution  to  which  the  bill  of  rights  applies,  which  declares 
that,  "  in  all  criminal  prosecutions,  the  accused  shall  be  entitled  to  demand 
the  nature  and  cause  of  the  accusation  against  him."  But  a  principle  so 
broad,  it  is  believed,  can  hardly  be  maintained  where  the  act  charged  is 
not  a  crime  at  common  law  or  in  its  essential  nature.  See  chapter  on 
Municipal  Courts,  post.    Ante,  pp.  308-313,  and  notes. 

1  Trustees  v.  Leffler,  23  111.  90 ;  Mooney  v.  Kennett,  19  Mo.  551,  1854 ; 
New  Orleans  v.  Bondo,  14  La.  An.  303,  1859 ;  Harker  v.  Mayor,  17  Wend. 
199,  1837 ;  Case  v.  Mobile,  30  Ala.  538,  1857 ;  People  v.  Mayor,  &c.  of  New 
York,  7  How.  Pr.  R.  81,  1851 ;  Cox  v.  St.  Louis,  11  Mo.  431, 1848 ;  Garvin  v. 
Wells,  8  Iowa,  286 ;  Goodrich  v.  Brown,  30  Iowa,  291,  1870.  In  England, 
when  an  action  on  a  by-law  founded  on  a  custom  is  brought  in  a  court  of 
the  municipality  the  court  will  take  judicial  notice  of  it,  but  in  an  action  in 
the  Superior  Courts  the  custom  and  the  by-law  must  be  set  out,  for  these 
courts  will  not  take  notice  of  them :  Willc.  166,  pi.  403 ;  ib.  172,  pi.  423 ;  ib.  173, 
pi.  425 ;  Broadnac's  Case,  1  Vent.  196 ;  Barber  Surgeons  v.  Pelson,  2  Lev  "252 ; 
Norris  v.  Staps,  Hob.  211.  In  Conboy  v.  Iowa  City,  2  Iowa,  90,  it  was  held 
that  the  mayor,  on  whom  was  conferred  exclusive  jurisdiction  of  the  viola- 
tion of  the  ordinances  of  the  city,  was  authorized  to  take  judicial  notice, 
ex-officio,  of  the  city  ordinances.  The  provisio.n  of  a  city  charter  that  its 
published  and  printed  ordinances  shall  be  received  in  evidence  in  all  courts 
without  further  proof,  does  not  dispense  with  the  necessity  of  making  them 
part  of  the  record  in  order  to  bring  them  to  the  knowledge  of  an  appellate 
court :  Cox  o.  St.  Louis,  11  Mo.  431,  1848  ;  New  Orleans  v.  Bondo,  14  La.  An- 
303,  1859. 


CH.  XII.]  MODE   OF   ENFORCING   ORDINANCES.  343 

ordinance  alleged  to  have  been  violated,  it  being  advisable,  for 
purposes  of  identification,  to  refer  also  to  the  title,  date,  and 
section.  The  liberal  rules  of  pleading  and  practice  which 
characterize  modern  judicial  proceedings  should  extend  to, 
and  doubtless  would  be  held  to  embrace  suits  and  prosecutions 
to  enforce  the  by-laws  or  ordinances  of  municipal  corpora- 
tions.1 

§  347.  Requisites  of  Complaints. —  Under  a  charter  authoriz- 
ing "  complaint "  to  be  made  of  the  violation  of  ordinances, 
but  not  prescribing  tbe  mode  or  requisites,  a  complaint  is  not 
in  the  nature  of  an  information  by  a  common  informer,  and  the 
same  strictness  is  not  required  as  in  an  information  or  indict- 
ment. "It  is  sufficient  if  it  sets  out  with  clearness  the  offence 
charged,  and  the  substance  of  that  part  of  the  ordinance  which 
has  been  violated,  with  a  reference  to  the  title,  date,  or  sec- 
tion." 2 

1  Harker  v.  Mayor,  &c.  17  Wend.  199,  1837.  See  Stokes  v.  Corporation  of 
New  York,  14  Wend.  87 ;  Mooney  v.  Kennett,  19  Mo.  551,  1854.  In  justify- 
ing, the  defendant  must  set  out  in  his  plea  or  answer  the  ordinance,  or 
so  much  thereof  as  will  show  on  what  the  defence  rests  :  lb. ;  Keeler  v. 
Milledge,  4  Zabr.  (N.  J.)  142,  1857.  It  is  sufficient  to  set  out  the  substance 
of  that  part  of  the  ordinance  which  has  been  violated  with  a  reference  to 
the  title,  date,  and  section :  76. ;  approved,  Kip  v.  Patterson,  2  Dutch.  (N.  J.) 
298.  Regularly,  the  by-law  or  its  substance  should  be  set  forth :  Case  v. 
Mobile,  30  Ala.  538,  1857  ;  Charleston  o.  Chur,  2  Bailey  (South  Car.),  164.  In 
England,  the  by  law  itself  must  be  fully  set  out  in  an  action  of  debt  upon  it, 
and  not  by  way  of  recital ;  but  in  assumpsit  upon  the  same  by-law,  latitude 
is  allowed ;  Willcock,  173,  pi.  425.  But  in  this  country  it  is  said  that  "it  is 
not  necessary  to  hold  to  the  strictness  anciently  required :  "  Keeler  v.  Mil- 
ledge,  4  Zabr.  142. 

2  Keeler  v.  Milledge,  4  Zabr.  (N.  J.)  142,  1857 ;  approved,  Kip  v.  Patterson, 
2  Dutch.  298 ;  City  Council  *.  Seeba,  4  Strob.  (South  Car.)  Law,  319 ;  Com- 
monwealth v.  Bean,  That.  85  ;  compare,  Fink  v.  Milwaukee,  17  Wis.  26,  1863  ; 
See,  also,  Commonwealth  v.  Bean,  14  Gray,  52.  By  statute,  prosecutions 
for  the  violations  of  the  ordinances  of  Boston  may  be  prosecuted  in  the 
name  of  the  commonwealth ;  and  it  is  decided  that  in  a  complaint  for  such 
a  violation  it  is  not  sufficient  that  it  concludes  "  against  the  form  of  the  by- 
laws of  the  said  city,"  but  it  must  conclude  also  against  the  form  of  the 
statute :  Commonwealth  v.  Gay,  5  Pick.  44,  1827 ;  Commonwealth  v.  Wor- 
cester, 3  Pick.  462,  1826.  Complaint  must  be  in  the  name  of  the  treasurer 
of  the  city  or  town,  and  not  in  that  of  the  commonwealth,  for  violation  of 
health  ordinances,  since  the  statute  of  1849 :  Chap  CCXI.  Sec.  7 ;  Common- 

"•Wealth  v.  Fakey,  5  Cush.  408, 1850.    Policemen,  marshals,  and  other  officers 


344  MUNICIPAL    CORPORATIONS.  [CH.  XII. 

§  348.  In  an  action  or  proceeding  to  recover  a  penalty  for 
the  violation  of  a  by-law  or  ordinance  of  a  corporation,  the 
declaration  or  complaint  should  state  facts  which  make  the  liabil- 
ity of  the  defendant  distinctly  to  appear.1  And  regularly,  as 
before  stated,  the  by-law  should  be  set  forth  or  its  substance 
stated,  the  breach  and  the  plaintiff's  right  to  sue  for  the  pen- 
alty. But  where  the  charter  or  organic  act  of  the  corporation 
will  be  judicially  noticed,  it  cannot  be  necessary  to  set  out,  as 
it  has  been  held  to  be  in  England,  the  authority  of  the  corpo- 
ration to  make  the  by-law.2 

§  349.  "Where  the  penalty  is  given  in  general  terms,  it  is 
understood  to  be  to  the  use  of  the  corporation,  and  the  action 
or  prosecution  must  be  by  and  in  the  name  of  the  corporation.3 
In  England  it  was  the  practice,  in  many  cases,  to  appoint  in 
the  by-law  the  penalty  to  be  sued  for  in  the  name  of  the  cham- 
berlain, treasurer,  or  some  other  officer  of  the  corporation,  and 
though  the  power  of  thus  suing  for  the  penalty  could  not  be 
given  to  a  mere  stranger,  yet  it  was  not  absolutely  necessary 
that  the  penalty  should  be  given  to  the  corporation,  but  it 

of  a  municipal  corporation,  where  such  a  course  is  not  repugnant  to  the 
constitution  or  general  law  of  the  state,  may  be  empowered  by  an  ordinance 
to  arrest  offenders  without  warrant,  for  breaches  of  ordinances  committed  in 
their  presence :  Bryan  v.  Bates,  15  111.  87 ;  Main  v.  McCarty,  15  111.  442 ; 
State  v.  Lafferty,  5  Harring.  (Del.)  491.  Requisites  of  warrants  for  the  viola- 
tion of  municipal  ordinances :  White  v.  Washington,  2  Cranch  Cir.  C.  337. 
Other  cases :  lb.  356  ;  lb.  459 ;  4  i&.  103  ;  lb.  582.  Sufficiency  of  notice  to  the 
accused  under  special  charter  provisions :  4  Zabr.  142,  supra.  Essentials  of 
summary  convictions :  Commonwealth  ■«.  Borden,  61  Pa.  St.  272. 

1  1  Saund.  PL  &  Ev.  324 ;  Comyn  Dig.  Tit.  Pleader  (2  W.  11)  ;  Feltmakers 
i>.  Davis,  1  Bos.  &  Pul.  98;  Piper  v.  Chappell,  14  M.  &.  W.  623;  Case  v.  Mo- 
bile, 30  Ala.  538,  1857 ;  Coates  v.  Mayor,  7  Cow.  585,  608,  1827,  where  the 
substance  of  a  declaration  in  debt  is  given ;  Charleston  v.  Chur,  2  Bailey 
(South  Car.),  164;  Krickle  v.  Commonwealth,  1  B.  Mon.  361,  1841.  Pleader 
need  not  negative  exception  in  a  proviso  to  the  enacting  clause  of  an  ordi- 
nance or  in  a  subsequent  section,  this  being  a  matter  of  defence  :  Lynch  v. 
People,  16  Mich.  472,  1868.  The  conviction  must  be  for  the  same  offence 
for  which  the  defendant  is  prosecuted :  Columbus  v.  Arnold,  30  Geo.  517. 

2  Norris  v.  Staps,  Hob.  211. 

"  Bodwici).  Fennell,  1  Wils.  233;  Vintner's  Co.  v.  Passey,  1  Burr.  235 
Glover,  313;  2  Kyd,  157 ;  Graves  v.  Colby,  9  Ad.  &  El.  356 ;  Williamson  v. 
Commonwealth,  4  B.  Mon,  146,  151, 1843.    Ante,  Chap.  VIII.  p.  160,  et  seq.    '* 


CH.  XII.]  MODE  OF  ENFORCING  ORDINANCES.  345 

might  be  given  to  the  informer.1  "Whenever  the  mode  of  en- 
forcing obedience  to  a  by-law  is  prescribed  by  such  by-law, 
that  mode  must  be  strictly  pursued,  and  the  plaintiff  (where 
the  rules  of  common  law  pleading  prevail)  must  be  the  party 
to  whom  the  penalty  is  given.  Where  it  is  given  to  the  cham- 
berlain for  the  use  of  the  corporation,  the  action  must  be  in 
the  name  of  the  chamberlain,  and  not  in  that  of  the  corporation. 
And  when  the  chamberlain  may  sue,  he  need  not  set  out  his 
election  or  appointment,  but  may  aver  generally  that  he  is 
chamberlain,  and  must  set  forth  his  right  to  sue  and  to  recov- 
er.' Unless  the  ordinance  show,  that  it  was  intended  that  no 
action  for  a  penalty  should  lie  without  a  previous  demand,  it  is 
not  necessary  to  aver  one.3  If  or  is  it  necessary  to  aver  that 
the  defendant  had  notice  of  the  ordinance,  for  this  is  conclus- 
ively presumed  with  respect  to  all  on  whom  it  is  binding.4 

§  350.  Mode  of  Procedure,  Defences,  Evidence,  $c. —  In  prose- 
cutions to  enforce  ordinances,  the  ordinary  rules  of  evidence  ap- 
ply, except  so  far  as  specially  modified  by  statute ;  and  it  is 
not  competent  for  a  municipal  corporation,  without  express 
authority,  to  make  or  alter  the  rules  of  evidence  or  of  law.5  It 
is,  however,  competent  for  a  city  to  provide  by  general  ordi- 
nance, after  suit  commenced  to  recover  a  penalty  for  acting 
without  a  license,  that  the  granting  of  a  license,  though  by  its 
terms  it  takes  effect  from  a  day  previous  to  the  commission  of 

1  Glover,  313,  314,  315  ;  Feltmakers  v.  Davis,  1  Bos.  &  P.  101 ;  Bodwic  v. 
Fennell,  1  Wils.  233 ;  Tottendell  v.  Glazby,  2  Wils.  266 ;  Hesketh  v.  Brad- 
dock,  3  Burr.  1848;  Wood  v.  Searl,  Bridg.  141 ;  Graves  v.  Colby,  9  Ad.  &  El. 
356. 

2  Harris  v.  Wakeman,  Say.  255 ;  Exon  v.  Starre,  2  Show.  159.  Under  con- 
stituent act,  town  treasurer  held  entitled  to  sue  in  his  own  name  for  penal- 
ties :  Watts  o.  Scott,  1  Dev.  (North  Car.)  291 ;  Commonwealth  v.  Fakey,  5 
Cush.  408,  1850. 

3  Butchers  ®.  Bullock,  3  Bos.  &  P.  434,  437. 

*  London  v.  Barnardston,  1  Lev.  16 ;  James  v.  Putney,  Cro.  Car.  498. 

5  City  Council  v.  Dunn,  1  McCord  (South  Car.),  333  ;  Fitch  v.  Pinckard,  4 
Scam.  (111.)  78.  The  defendant's  admission  of  a  violation  of  an  ordinance 
is  competent  evidence:  Columbia  v.  Harrison,  2  Const.  E.  (South  Car.)  213, 
1818. 

44 


346  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

the  offence,  shall  not  (as  might  otherwise  be  the  case)  release  or 
waive  the  penalty} 

§  351.  In  proceedings  to  enforce  ordinances,  the  illegality  of 
the  corporate  organization  cannot  be  shown  to  defeat  a  recovery ; 
in  such  a  collateral  proceeding,  evidence  that  the  corporation 
is  acting  as  such  is  all  that  is  required.2 

§  352.  The  legislature  may  ratify  ordinances  not  otherwise 
binding ;  and  offenders  should  thereafter  be  prosecuted  under 
the  ordinances,  and  not  under  the  validating  act.3 

§  353.  In  prosecutions  or  actions  to  enforce  ordinances,  or 
in  considering  the  question  of  their  validity,  courts  will  give 
them  a  reasonable  construction,  and  will  incline  to  sustain  rather 
than  to  overthrow  them,  and  especially  is  this  so  where  the 
question  depends  upon  their  being  reasonable  or  otherwise. 
Thus  if  by  one  construction  an  ordinance  will  be  valid,  and  by 
another  void,  the  courts  will,  if  possible,  adopt  the  former. 
But  an  ordinance  which  transcends  the  power  vested  in  the 
body  which  passed  it  is  void,  and  may  be  taken  advantage  of 
by  plea  or  answer  to  an  action  to  recover  the  penalty  or  other 
proceedings  to  enforce  it.4  Its  validity  may  also  be  tested  in 
proper  cases  by  suits  against  the  corporation  or  its  officers  for 

1  City  Council  v.  Smidt,  11  Rich.  (South  Car.)  Law,  343  ;  City  Council  v. 
Corlies,  2  Bailey  (South  Car.),  189.  Commented  on  by  OWeall,  J.,  in  City 
Council  v.  Feckman,  3  Rich.  (South  Car.)  Law,  385.  And  see  case  last  cited 
as  to  other  circumstances,  in  which  it  was  held  that  a  prior  penalty  was 
not  waived  by  a  subsequent  acceptance  of  the  amount  of  a  license  for  a 
year. 

2  Hamilton  v.  Carthage,  24  111.  22 ;  Mendota  v.  Thompson,  20  111.  197 ; 
Coles  County  v.  Allison,  23  111.  437 ;  Decorah  v.  Gillis,  10  Iowa,  234  ;  Ketter- 
ing v.  Jacksonville,  50  111.  39 ;  Tisdale  v.  Minonk,  46  111.  9,  1867. 

s  Truchelut  v.  City  Council,  1  Nott  &  McC.  (South  Car.)  227,  1818.  Ante, 
Chap.  IV.  p.  92,  Sec.  46,  and  note  2. 

4  Commonwealth  v.  Robertson,  5  Cash.  438,  442,  1850 ;  Vintners  v.  Passey, 

1  Burr.  239 ;  Poulters  Co.  v.  Phillips,  6  Bing.  (N.  C.)  314,  323 ;  Tailors  of  Ips- 
wich, 11  Rep.  54,  a ;  Norris  v.  Staps,  Hob.  211 ;  Tobacco,  &c.  Co.  v.  "Wood- 
roffe,  7  B.  &  C.  838 ;  Moir  v.  Munday,  Sayer,  181,  185 ;    Rounds  v.  Mumford, 

2  Rh.  Is.  154, 1852.  Where  the  legislature  has  conferred  full  and  exclusive 
jurisdiction  to  a  municipal  corporation  over  a  certain  subject,  the  acts  of  the 
corporation  will  be  supported  by  every  fair  intendment  and  presumption  : 


CH.  XII.]  MODE   OF   ENFORCING  ORDINANCES.  347 

acts  done  under  it,1  or  by  a  return  to  a  mandamus  where  the 
party  justifies  his  refusal  to  comply  with  the  writ,  on  the 
ground  that  the  ordinance  is  invalid,2  or,  as  elsewhere  shown, 
by  bill  in  chancery  to  enjoin  proceedings  thereunder. 

§  354.  If  part  of  a  by-law  be  void,  another  essential  and  con- 
nected part  of  the  same  by-law  is  also  void.3  But  it  must  be 
essential  and  connected  to  have  this  effect.  Thus,  if  an  ordi- 
nance, or  even  the  same  section  of  an  ordinance,  contains  two 
separate  prohibitions  relating  to  different  acts,  with  distinct 
penalties  for  each,  one  of  which  is  valid  and  the  other  void, 
the  ordinance  may  be  enforced  as  to  that  portion  of  it  which 
is  valid.4 

Baltimore  v.  Clunet,  23  Md.  449, 1865.  In  view  of  the  inartificial  character 
of  town  by-laws,  they  are  especially  entitled  to  a  reasonable  construction : 
Whitlock  v.  West,  26  Conn.  406 ;  Willc.  Mun.  Corp.  159,  pi.  382.  By-laws 
with  penalties  are  not  properly  penal  statutes.  The  penalty  is  in  the  na- 
ture of  liquidated  damages,  established  as  such  in  lieu  of  damages  which  a 
court  would  be  authorized  to  assess.  Therefore  the  strict  rules  by  which 
the  validity  of  penal  statutes  are  to  be  tested  are  not  to  be  applied  to  the 
by-laws  or  ordinances  of  municipal  corporations.  It  is  well  remarked,  that 
"  the  by-laws  of  very  few  of  these  corporations  could  stand  such  a  test. 
They  should  receive  a  reasonable  construction,  and  their  terms  must  not 
be  strictly  scrutinized  for  the  purpose  of  making  them  void : "  Per  Eustis, 
C.  J.,  Municipality  v.  Cutting,  4  La.  An.  335 ;  Merraim  v.  New  Orleans,  14  ib. 
318 ;  S.  P.  Loze  v.  Mayor,  &c.  2  La.  427.  If,  however,  the  ordinance  is,  in  its 
nature,  highly  penal,  it  will  be  construed  strictly,  and  it  must  clearly  em- 
brace the  offence  charged:     Krickle  v.  Commonwealth,  1  B.  Mon.  361, 1841. 

1  Moir  v.  Munday,  Sayer,  181, 185.  See  protective  provisions  to  corporate 
officers  and  agents  in  Municipal  Corporations  Act,  5  and  6  Will.  IV.  Chap. 
LXXVI.  Sees.  132,  133. 

2  Rex  v.  Harrison,  3  Burr.  1322;  Grant  on  Corp.  89.  An  ordinance  may 
be  void  for  uncertainty  in  its  provisions,  as,  for  example,  one  which  alters 
street  grades,  without  referring  to  any  plan  or  establishing  new  grades : 
Kearney  v.  Andrews,  2  Stock.  (N.  J.)  70. 

3  Austin  v.  Murray,  16  Pick.  121,  126,  1834 ;  Com.  Dig.  By-law,  Chap.  VII. ; 
Eex  v.  The  Company,  &c.  8  Term  R.  356.  See  Commonwealth  v.  Stodder,  2 
Cush.  562,  1848 ;  Fisher  v.  McGirr,  1  Gray,  1 ;  Warren  v.  Mayor,  &c.  2  Gray, 
84;  Commonwealth  v.  Hitchings,  5  Gray,  482. 

*  Commonwealth  v.  Dow,  382,  1845 ;  Amesbury  v.  Insurance  Company,  6 
Gray,  596 ;  Shelton  v.  Mayor  of  Mobile,  &c.  (market  ordinance)  30  Ala. 
540, 1857 ;  Rogers  v.  Jones,  1  Wend.  237 ;  Thomas  v.  Mount  Vernon,  9  Ohio, 
290  ;  1  Stra.  469  ;  Sir  T.  Raym.  288,  294;  Sayer,  256 ;  1  B.  &  Ad.  95  ;  7  Term 
R.  549.    "  If  a  by-law  be  entire,  each  part  having  a  general  influence  over 


348  MUNICIPAL   CORPORATIONS.  [CH.  XII. 

§  355.  When  not  specially  regulated  by  charter  or  statute, 
the  proof  of  ordinances  must  be  by  the  production  of  the  origi- 
nals or  the  books  in  which  they  are  registered,  as  these  are  the 
primary  evidence.1  Printed  copies,  or  authenticated  copies, 
are  often  made  competent  evidence  by  the  legislature. 

the  rest,  and  one  part  of  it  be  void,  the  entire  by-law  is  void :"  Willcock  on 
Corp.  160,  pi.  384 ;  approved,  Municipality  v.  Morgan,  1  La.  An.  Ill,  116, 
1846.  "  But  if  a  by-law  consist  of  several  distinct  and  independent  parts, 
although  one  or  more  of  them  may  be  void,  the  rest  are  equally  valid,  as 
though  the  void  clauses  had  been  omitted : "  Willcock,  161,  pi.  389 ;  Fazak- 
erly  v.  Willshire,  11  Mod.  353 ;  Lee  v.  Walis,  1  Kenyon,  295.  In  a  leading 
case,  Rex  v.  The  Co.  of  Fishermen,  8  Term  R.  356,  Lord  Kenyon  said : 
"  With  regard  to  the  form  of  the  by-law  indeed,  though  a  by-law  may  be 
good  in  part  and  bad  in  part,  yet  it  can  be  so  only  when  the  two  parts  are 
entire  and  distinct  from  each  other."  Approved,  Municipality  v.  Morgan,  1 
La.  An.  Ill,  116,  1846.  It  is  stated  in  Grant  on  Corporations,  88,  that  it  is 
"  now  fully  settled  that  a  by-law  that  is  void  in  part  is  void  wholly ;  e.  g.  if 
the  penalty  be  unreasonable  the  rest  of  the  by-law  is  vitiated  thereby,  and 
becomes  wholly  inoperative  and  null :  "  Citing  Com.  Dig.  By-Law,  Chap. 
VII. ;  Colchester  v.  Godwin,  Carter,  121 ;  Ellwood  v.  Bullock,  6  Queen's  B. 
383 ;  Clarke  v.  Tuckett,  2  Vent.  182 ;  Rex  v.  Atwood,  4  B.  &  Ad.  481.  But 
the  rule  in  the  text  is  well  sustained,  and  is  reasonable ;  and  it  is  not  true 
that  the  void  part  of  a  by-law  will  make  null  complete  and  independent 
parts  of  the  same  by-law  which  would  otherwise  be  good. 

1  Lumbard  v.  Aldrich,  8  N.  H.  31 ;  Stevens  v.  Chicago,  48  111.  498 ;  Moore 
v.  Newfleld,  4  Greenl.  (Me.)  44 ;  Hallowell  Bank  v.  Hamlin,  14  Mass.  178 ; 
Case  of  Thetford,  12  Vin.  Abr.  90.  See  chapter  on  Corporate  Records  and 
Documents,  ante.  Proof  may  be  made  by  the  clerk  that  he  posted  up  copies 
of  an  ordinance  appearing  on  the  records,  without  producing  such  copies  or 
accounting  for  their  absence :  Teft  o.  Size,.  5  Gilm.  (111.)  432.  As  to  promul- 
gation and  publication  of  ordinance :  Charleston  v.  Chur,  2  Bailey  (South 
Car.),  164 ;  Battering  v.  Jacksonville,  50  111.  39.    Supra,  Sees.  265-269. 


CH.  XIII.]  MUNICIPAL   COURTS.  349 


CHAPTER  XIII. 

Municipal  Courts. 
Municipal  Courts  in  England  and  at  Common  Law. 

§  356.  A  municipal  corporation  may,  at  common  law,  en- 
joy the  franchise  of  holding  a  court ;  and  corporation  or  muni- 
cipal courts,  which  were  local  or  inferior  jurisdictions,  were 
not  uncommon.1  They  were  treated  as  the  tribunals  of  the 
corporation,  but  since  courts  of  justice  are  for  the  public  bene- 
fit, words  in  a  charter  permitting  the  corporation  to  hold  a 
court  are  imperative ; 2  and  the  right  cannot  be  lost  by  non- 
user  ;  and  therefore  the  mere  disuse,  for  two  hundred  years, 
of  a  court  granted  to  a  corporation  by  charter,  is  no  answer  to 
a  rule  for  a  mandamus  commanding  them  to  hold  it,  though  it 
was  alleged  that  there  were  no  sufficient  funds  for  the  purpose.3 

The  common  law  doctrine  respecting  municipal  courts  was 
settled  to  be  that  the  municipal  corporation  could  bring  no 
action  therein  against  a  stranger  where  the  effect  would  be  to 
benefit  the  corporation  or  increase  its  funds,  for  that  would  be 
to  make  the  corporation  itself  both  judge  and  party,  which  an 
inflexible  and  fundamental  maxim  of  the  common  law  prohib- 
ited, and  the  same  principle  was  considered  to  operate  to  dis- 
qualify corporators  to  sit  as  jurors  in  such  cases ;  but  this  ob- 
jection did  not  apply  when  both  parties  were  corporators.4 

The  English  Municipal  Corporation  Act  of  1835  provides 
for  the  establishment  of  borough  courts,  defines  their  jurisdiction 
and  powers,  makes  burgesses  or  citizens  competent  jurors, 
contains  an  express  provision  that  no  witness  or  magistrate 

1  1  Inst,  114 ;   4  ib,  87,  224 ;  Cro.  Jac.  313 ;   Haddock's  Case,  T.  Eaym.  435. 
a  Bex  v.  Mayor,  &c,  of  Hastings,  5  B,  &  Aid,  592 ;  Grant  on  Corp,  34, 

3  Eegina  v.  Mayor,  &c,  of  Wells,  4  Dowl.  P.  C.  562. 

4  Hesketh  v.  Braddock,  3  Burr.  1856-1868  ;  Grant  on  Corp.  194 ;  London 
v.  Wood,  12  Mod.  674;  1  Salk.  398  ;  Bosworth  v,  Budgen,  7  Mod,  461 ;  Rex 
v.  Rogers,  2  Ld.  Raym.  778 ;  Willc.  on  Corp,  157, 165, 


350  MUNICIPAL   CORPORATIONS.  [CH.  XIII. 

shall  be  incompetent  or  disqualified  by  reason  of  bis  being 
liable  to  contribute  to  the  fund  of  the  corporation,  and  regu- 
lates in  general  the  proceedings  therein  for  violations  of  by- 
laws or  ordinances,  and  the  collection  '  and  enforcement  of 
penalties.1 

It  may,  however,  be  observed  that  the  power  to  make  by- 
laws is  limited,  and  does  not  extend  to  acts  criminal  in  their 
nature,  and  which  are  punishable  by  criminal  statutes  in  force 
throughout  the  municipality. 

American  Corporation  Courts —  Constitutional  Provisions. 

§  357.  In  this  country  it  is  usual  to  provide  in  the  charter 
or  organic  act  of  a  municipal  corporation  for  a  local  or  special 
tribunal,  called  by  different  names,  such  as  the  mayor's  court, 
recorder's  court,  city  court,  police  court,  and  the  like;  and 
which  is  invested  with  jurisdiction  over  complaints  and  prose- 
cutions for  the  violation  of  the  ordinances  of  the  corporation, 
and  often,  for  public  convenience,  with  special  civil  and  limited 
criminal  jurisdiction  under  the  laws  of  the  state. 

It  is  competent  for  the  legislature  to  provide  for  the  estab- 
lishment of  these  inferior  courts,  and  to  invest  them  with  such 
measure  of  power  and  jurisdiction  as  may  be  deemed  expe- 
dient, if  no  provision  of  the  constitution  of  the  particular  state 
be  infringed.2 

1  5  and  6  Will.  IV.  Chap.  LXXVL  Sees,  90,  91-118-134,  1835. 

2  State  v.  Mayor  of  Charleston,  14  Rich.  (So.  Car.),  Law,  480;  State  v.  Hel- 
frid,  2  Nott  &  McCord,  233,  1820.  Full  discussien  of  legislative  power  to 
create  inferior  courts,  and  define  jurisdiction :  lb. ;  Gray  v.  The  State,  2 
Harring.  (Del.)  76,  1835.  Mayor's  court  an  inferior  court  within  meaning 
of  state  constitution :  lb.;  Egleston  v.  City  Council,  1  Const.  (So.  Car.)  R.  45, 
1818.  As  to  official  character  of  city  recorder :  lb. ;  Schroder  v.  City  Coun- 
cil, 2  Const.  R.  726.  S.  C.  3  Brev.  533 ;  Tesh  v.  Commonwealth,  4  Dana,  522 ; 
Nugent  v.  The  State,  18  Ala.  521,  1821.  Holding  the  city  court  of  Mobile, 
which  is  invested  with  criminal  jurisdiction,  and  from  whose  judgment  an 
appeal  lies,  to  be  constitutional,  and  defining  meaning  of  inferior  court?  lb.; 
New  Orleans  v.  Costello,  14  La.  An.  37  ;  Myers  s.  People,  26  111.  173;  Davis 
v.  Woolnough,  9  Iowa,  104 ;  People  v.  Wilson,  15  III.  389 ;  State  v.  Maynard, 
14  111.  420 ;  Beesman  v.  Peoria,  16  111.  484  ;  "Van  Swa'rtow  v.  Commonwealth, 
24  Pa.  St.  131,  1854 ;  Tierney  v.  Dodge,  9  Minn.  166 ;  Burns  v.  La  Grange, 
17  Texas,  415, 1856;  Ex  parte  Slattery,  3  Ark.  434;  ib.  561;  Graham  v.  State, 
1  Pike  (Ark.),  171;  Floyd  v.  Commissioners,  14  Geo.  354,  1853;  State  v. 
Guttierrez,  15  La.  An.  190;  Muscatine  v.  Steck,  7  Iowa,  505.    The  superior 


CH.  XIII,]  MUNICIPAL   COURTS.  351 

§  358.  We  have  elsewhere  shown  that  the  courts  have  uni- 
formly held  that  it  was  competent  for  the  state  legislatures  to 
create  municipal  corporations  with  powers  of  local  govern- 
ment, and  to  authorize  them  to  adopt  ordinances  or  by-laws 
with  appropriate  penalties  for  their  violation.     The  power  to 

court  of  the  city  of  San  Francisco  is  constitutional :  Seale  v.  Mitchell,  5  Cal. 
403 ;  Vassault  v.  Austin,  36  Cal.  691 ;  Hickman  v.  O'Neal,  10  Cal.  294.  The 
constitution  of  California,  as  amended  in  1862,  authorized  the  legislature  to 
establish  "  recorder's  or  other  inferior  courts  in  any  incorporated  city  or 
town ; "  and  it  was  held,  in  view  of  the  prior  decisions  in  the  state  just 
cited,  that  the  municipal  criminal  court  of  the  city  and  county  of  San  Fran- 
cisco was  an  inferior  court,  and  constitutional :  Stratman,  Ex  parte,  39  Cal. 
517,  1870. 

Under  a  constitutional  provision  declaring  that  "  the  judicial  power  shall  he 
vested  in  a  Supreme  Court,  in  district  courts,  and  in  justices  of  the  peace," 
an  act  conferring  judicial  powers  on  the  mayor  of  a  city  was  considered 
void,  and  it  was  held  that  for  violations  of  its  ordinances  the  corporation 
should  resort  to  the  judicial  tribunals  organized  under  the  constitution : 
Lafon  v.  Dufrocq,  9  La.  An.  350,  1854.  But  see  The  State  v.  Young,  3  Kan- 
sas, 445,  1866,  where  a  provision  in  an  organic  act  that  the  judicial  power 
shall  be  vested  exclusively  in  a  Supreme  Court,  district,  probate,  and  justice 
courts,  was  held  not  to  prohibit  the  legislature  from  establishing  municipal 
courts  for  the  enforcement  of  municipal  regulations  and  ordinances.  And 
this  seems  to  be  the  correct  view:  Shafer  v.  Mumma,  17  Md.  331.  In 
Hutchins  v.  Scott,  4  Halst.  (N.  J.)  218,  1827,  the  objection  was  made  that  the 
legislature  could  not  constitutionally  confer  the  powers  of  justices  of  the 
peace  on  the  mayor,  recorder,  or  aldermen  of  a  city  or  borough,  the  argument 
being  that  since  the  constitution  provided  for  the  appointment  of  justices 
of  the  peace  only,  and  not  for  corporate  officers,  officers  exercising  the 
authority  and  powers  of  a  justice  of  the  peace  should  be  appointed  as  such; 
but  the  objection  was  not  sustained.  In  Illinois,  mayors  of  cities  cannot, 
it  is  held,  be  constitutionally  invested  with  judicial  power :  The  State,  &c; 
v.  Maynard,  14  111.  420 ;  Beesman  v.  Peoria,  16  111.  484.  By  the  general  law 
of  Indiana  of  1857,  for  the  incorporation  of  cities,  mayors,  in  addition  to 
their  duties  proper,  have,  "  within  the  limits  of  cities,  the  jurisdiction  and 
powers  of  a  justice  of  the  peace  in  all  matters,  civil  and  criminal,  arising 
under  the  laws  of  the  state,  and  for  crimes  and  misdemeanors  a  jurisdiction 
co-extensive  with  the  county."  The  constitution  of  the  same  state  (Art. 
VII.  Sec.  16)  declared  that  "  no  person  elected  to  any  judicial  office  shall, 
during  the  term,  be  eligible  to  any  office  of  trust  or  profit  under  the  state, 
other  than  a  judicial  office.''  One  Wallace  was  elected  mayor  of  Indian- 
apolis, add  within  his  term  he  resigned  and  received  a  majority  of  votes  for 
sheriff  of  the  county.  It  was  held  by  the  Supreme  Court  df  Indiana 
(Waldo  v.  Wallace,  12  Ind.  569,  1859;  Gulick  v.  New,  14i6.  93),  that  Wallace 
was  a  "judicial  officer,"  and  therefore  ineligible  to  the  office  of  sheriff; 
that  the  voters  of  the  county  were  chargeable  with  notice  of  his  ineligibil- 
ity ;  that  votes  cast  for  him  were  therefore  ineffectual,  and  that  his  com- 


352  MUNICIPAL   CORPORATIONS.  [CH.  XIII. 

do  this  includes,  by  fair  construction,  the  power  to  authorize 
violations  of  ordinances  (where  the  acts  are  not  criminal  in 
their  nature)  to  be  tried  and  determined  in  a  summary  man- 
ner, by  a  local  or  corporation  tribunal. 

The  distinction  between  statute  law  and  municipal  by-laws 
has  been  pointed  out,  and  the  subject  of  concurrent  prohibi- 
tions of  the  same  act  by  the  general  law  and  by  the  local  ordi- 
nances of  a  municipality  treated,  in  the  chapter  on  Ordinances. 
The  distinction  is  there  drawn,  and  is  to  be  observed  between 
acts  not  essentially  criminal,  relating  to  municipal  police,  and 
those  intrinsically  criminal,  and  which  are  made  punishable  by 
the  general  laws  of  the  state.  The  pecuniary  penalties  which 
are  annexed  to  violations  of  the  former  class,  the  legislature 
may,  we  think,  authorize  the  corporation  to  enforce  in  its  own 

petitor,  having  received  the  greatest  number  of  legal  votes,  though  not  a 
majority  of  the  ballots,  was  duly  elected.  Notwithstanding  the  great  con- 
sideration which  these  cases  received,  I  venture,  with  great  deference,  to 
state  that  it  is  by  no  means  clear  to  my  mind  that  the  mayor  was  a  "judi- 
cial officer  "  within  the  meaning  of  the  constitution.  See,  as  bearing  upon 
the  above  decision,  and  illustrative  of  the  nature  of  the  office  of  mayor 
Morrison  v.  McDonald,  21  Maine,  550,  1842 ;  State  v.  Maynard,  14  111.  419, 
1853 ;  Commonwealth  v.  Dallas,  4  Dallas,  229 ;  S.  C.  more  fully,  3  Yeates, 
300,  1801 ;  State  *.  Wilmington,  3  Harring.  (Del.)  294, 1839.  Authority  of  a 
mayor  under  a  statute  investing  him  with  the  powers  of  a  justice  of  the 
peace :  State  v.  Perkins,  4  Zabr.  (N.  J.)  409 ;  1  Harr.  (N.  J.)  237.  See  Baton 
Rouge  v.  Deering,  15  La.  An.  208.  A  constitutional  provision  as  to  eligibility 
"to  the  office  of  judge  of  any  court  of  the  state,"  &c,  and  requiring  a  two 
years  residence  "in  the  division,  circuit,  or  county,"  was  considered  to 
have  no  reference  to  the  office  of  recorder  of  a  city :  The  People  v.  Wilson 
15  111.  389. 

The  constitution  of  Nevada  provided  that  "the  legislature  may  also 
establish  courts  for  municipal  purposes  only,  in  incorporated  cities  and 
towns,"  and  it  was  held  that  an  act  authorizing  the  city  recorder  to  exer- 
cise the  duties  of  committing  magistrates  in  respect  to  offences  against  the 
public  laws  of  the  state  was  in  conflict  with  the  constitution :  Meagher  v. 
County,  5  Nev.  244, 1869.  The  constitution  of  Maryland  contains  a  pro- 
vision that  "the  judicial  power  of  the  state  shall  be  vested  in  a  Court  of 
Appeals,  in  circuit  courts,  in  such  courts  for  the  city  of  Baltimore  as  may 
be  hereafter  prescribed,  and  injustices  of  the  peace,"  and  it  was  held  that 
the  legislature  might  authorize  municipal  courts  to  try  and  punish  disor- 
derly persons  and  lewd  women  within  the  corporate  limits,  and  generally 
to  authorize  the  corporate  authorities  to  exercise  police  powers,  which 
were  distinguished  from  the  ordinary  judiciary  powers  of  the  state  :  Shafer 
v.  Mumma,  17  Md.  331,  1861. 


CHi  XIII.]  MUNICIPAL   COURTS.  353 

name,  by  civil  action,  or  by  complaint,  and  provision  need  not 
necessarily  be  made  tbat  they  shall  be  prosecuted  in  the  name 
of  the  people  or  of  the  state.1 

1  Barter  v.  Commonwealth,  3  Pa.  (Pen.  &  W.)  253 ;  Weeks  v.  Foreman,  1 
Harrison  (N.  J.),  237 ;  Ewbank  v.  Ashley,  36  111.  177  ;  Williams  v.  Augusta, 
4  Geo.  509;  Floyd  v.  Commissioners,  14  Geo.  354;  Kip  v.  Patterson,  2  Dutch. 
(N.  J.)  298;  Lewistown  v.  Proctor,  23  111.  533;  State  v.  Jackson,  8  Mich.  110. 
See  State  v.  Stearns,  11  Fost.  106;  Goddard,  Petitioner,  16  Pick.  504;  Fink  v. 
Milwaukee,  1 7  Wis.  26. 

'  The  constitution  of  the  state  of  Iowa  contains  this  provision  :  "  The  style 
of  all  process  shall  be  'The  State  of  Iowa,'  and  all  prosecutions  shall  be  con- 
ducted in  the  name  and  by  the  authority  of  the  same : "  Constitution  of 
Iowa,  Art.  V.  Sec.  8.  The  charter  of  the  city  of  Davenport,  in  terms, 
authorized  prosecutions  for  violations  of  municipal  ordinances  to  be  insti- 
tuted in  the  name  of  the  city,  and  it  was  contended  that  this  portion  of  the 
charter  was  in  conflict  with  the  above  quoted  provision  of  the  constitution. 
But  the  Supreme  Court,  in  the  case  of  Davenport  v.  Bird,  December  term 
.  1871  (not  yet  reported),  held  otherwise.  It  was  a  prosecution  in  the  name 
of  the  city  against  the  defendant  for  a  violation  of  an  ordinance  of  a  police 
nature,  but  for  which,  under  the  charter,  the  city  was  authorized  to  punish 
by  a  limited  fine  and  imprisonment.  In  giving  the  opinion  of  the  court, 
Miller,  J.,  says :  "  Is  it  necessary,  under  the  constitution,  that  all  prosecu- 
tions for  violations  of  municipal  police  ordinances  shall  be  conducted  in 
the  name  and  by  the  authority  of  the  state  of  Iowa  ?  Or,  in  other  words,  is 
that  clause  of  the  city  charter  of  Davenport,  which  directs  that  '  all  suits, 
actions,  and  prosecutions  instituted,  commenced,  or  brought  by  the  corpor- 
ation shall  be  instituted,  commenced,  and  prosecuted  in  the  name  of  the  city 
of  Davenport,'  in  conflict  with  the  constitutional  provision  before  referred 
to?  We  are  of  opinion  that  it  is  not.  This  clause  of  the  constitution 
occurs  in  Art.  V.,  which  treats  of  the  judicial  department  of  the  govern- 
ment. This  article  vests  and  defines  the  judicial  power  of  the  state,  estab- 
lishes the  tenure  of  office  of  the  judges,  and  defines  the  mode  of  their 
election ;  fixes  their  salary  and  limits  the  number  of  judicial  districts ; 
provides  for  the  election  of  an  attorney  general,  and  other  matters  pertain- 
ing to  the  judicial  arm  of  the  state,  among  which  is  the  clause  under  con- 
sideration. From  all  this,  it  seems  manifest  that  the  requirement  '  that  all 
prosecutions  shall  be  conducted  in  the  name  of  "  The  State  of  Iowa  "  '  con- 
templates such  criminal  prosecutions  as  shall  be  instituted  and  prosecuted 
before  the  tribunals  which  are  provided  for  in  that  article  of  the  constitu- 
tion under  the  statutes  of  the  state.  It  is  fitting  and  appropriate  that  pros- 
ecutions for  violations  of  the  criminal  laws  of  the  state  should  be  carried  on 
in  the  name  of  the  government.  But  there  is  no  fitness  or  propriety  in  re- 
quiring the  state  to  be  a  party  to  every  petty  prosecution  under  the  police 
regulations  of  a  municipal  corporation.  Such  a  construction  of  this  article  of 
the  constitution  seems  to  us  unwarranted,  and  not  intended  by  the  framers 
of  the  constitution.  It  was  held  by  the  Supreme  Court  of  Pennsylvania 
that  the  word  process,  in  the  12th  section  of  the  5th  article  of  the  constitu- 
45 


354  MUNICIPAL   CORPORATIONS.  [CH.  XIII. 

§  359.  In  creating  local  tribunals,  however,  and  in  pre- 
scribing their  jurisdiction,  it  is  essential  that  the  legislature 
should  keep  in  view  two  cardinal  considerations :  First.  That 
these  inferior  courts  will  have  only  such  jurisdiction,  and  can 
exercise  only  such  powers,  as  are  expressly  given,  or  necessarily 
implied.  Fair  doubts  as  to  the  extent  of  jurisdiction  are 
resolved  against  the  corporation ;  to  this  effect  are  all  the  au- 
thorities. Second.  Regard  should  also  be  had  to  constitutional 
provisions  intended  to  secure  the  liberty  and  protect  the  rights 
of  the  citizen.  The  state  constitutions  contain  the  substance 
of  the  provisions  of  Magna  Charta  to  the  effect  that  no  citizen 
shall  be  deprived  of  life,  liberty,  or  property  but  by  the  judg- 
ment of  his  peers  or  by  the  law  of  the  land,  and  also  provis- 
ions, more  or  less  extensive,  securing  the  right  of  trial  by  jury. 
These  and  other  provisions  of  the  fundamental  law  cannot  be 
violated  in  acts  of  the  legislature  establishing  and  fixing  the 
jurisdiction  of  the  corporation  court  or  tribunal.1 

Oitizens  Competent  to  be  Local  Judges,  Jurors,  and, '  Witnesses. 

§  360.  The  maxim  of  the  common  law  above  adverted  to, 
that  no  one  shall  be  a  judge  in  his  own  case,  has  no  just  ap- 
plication to  legislation  creating  municipal  courts,  and  invest- 
ing them  with  jurisdiction  to  try  complaints  for  breaches  of 
municipal  ordinances.  The  mayor,  though  a  citizen  of  the 
corporation,  may  be  clothed  with  judicial  powers  of  this  char- 

tion  of  the  state  of  Pennsylvania,  which  provides  that  '  the  style  of  all 
process  shall  he  the  Commonwealth  of  Pennsylvania,'  was  intended  to  refer 
to  such  writs  only  as  should  become  necessary  to  be  issued  in  the  course  of 
the  exercise  of  that  judicial  power  which  is  established  and  provided  for  in 
the  article  of  the  constitution,  and  forms  exclusively  the  subject  matter  of 
it.  On  the  same  principle,  we  are  of  opinion  that  the  word  '  prosecutions,' 
in  the  8th  section  of  Article  V.  of  our  constitution,  was  intended  to  refer 
only  to  such  criminal  prosecutions  under  state  laws  as  should  be  cognizable 
by  the  judicial  power,  which  is  established  and  provided  for  in  that  article, 
and  that  it  was  not  intended  to  include  prosecutions  under  ordinances  of 
municipal  corporations  cognizable  before  local  police  magistrates." 

And  the  same  view  is  held  by  the  Court  of  Appeals  of  Kentucky :  Wil- 
liamson v.  Commonwealth,  4  B.  Mon.  146,  1843.  As  to  mode  of  enforce- 
ment and  requisites  of  complaints,  vide  chapter  on  Ordinances,  Sec.  341. 

1  Zylstra  v.  The  Corporation  of  Charleston,  1  Bay,  382,  1794 ;  People  i>. 
Slaughter,  2  Doug.  (Mich.)  334,  1842. 


CH.  XIII.J  MUNICIPAL   COURTS.  355 

ter,  and  the  inhabitants,  though  interested  in  a  minute  degree 
in  the  recovery,  are,  or  at  least  may  be  declared,  competent 
witnesses.  In  this  respect  the  common  law  rules  have  not 
been  adopted  and  applied  by  the  American  courts  to  our  mu- 
nicipal corporations.1 

Summary  Proceedings  may,  in  Certain  Cases,  be  Authorized. 

§  361.  Proceedings  for  the  violation  of  municipal  ordi- 
nances are  frequently  summary  in  their  character,  and  it  has 
been  made  a  question  how  far  statutes  or  charters  authorizing 
such  proceedings  are  valid,  especially  where  no  provision  is 
made  for  trial  by  jury.  This  must  depend  upon  the  constitu- 
tion of  the  state  and  the  extent  to  which  the  power  of  the  legis- 
lature is  therein  restricted.  Offences  against  ordinances  prop- 
erly made  in  virtue  of  the  implied  or  incidental  power  of  the 
corporation,  or  in  the  exercise  of  its  legitimate  police  authority 

1  Thomas  v.  Mount  Vernon,  9  Ohio,  290,  1839;  Commonwealth  v.  Read,  1 
Gray  (Mass.),  475 ;  The  Mayor  v.  Long,  31  Mo.  369, 1861 ;  Commonwealth  v. 
Ryan,  5  Mass.  90  ;  Cooley  Const.  Lim.  410,  412. 

In  The  City  Council  v.  Pepper,  1  Rich.  (So.  Car.)  Law,  364, 1845,  the  de- 
fendant, a  non-resident  of  the  city,  was  prosecuted  in  the  city  court,  estab- 
lished by  act  of  the  legislature,  for  a  violation  of  a  city  ordinance.  The 
defendant  made  the  point  that  as  the  judge  of  that  court,  the  sheriff,  and 
jurors  were  corporators,  and  therefore  interested  in  the  penalty,  they  were 
incompetent  to  try  the  cause.  In  holding  this  objection  unsound,  the 
Court  of  Appeals,  after  alluding  to  Hesketh  v.  Braddock,  3  Burr.  1847,  relied 
on  by  the  defendant,  remarks :  "  The  statutory  authority  given  to  the  city 
court  to  try  all  offenders  against  city  ordinances,  impliedly  declares  that, 
notwithstanding  the  common  law  objection,  it  was  right  and  proper  to  give 
it  the  power  to  enforce  the  city  laws  against  all  offenders.  The  interest  is 
too  minute,  too  slight,  to  excite  prejudice  against  a  defendant;  for  the  judge, 
sheriff,  and  jurors  are  members  of  a  corporation  of  many  thousand  mem- 
bers. What  interest  of  value  have  they  in  a  fine  of  twenty  dollars  ?  It 
would  put  a  most  eminent  calculator  to  great  trouble  to  ascertain  the  very 
minute  grain  of  interest  which  each  of  these  gentlemen  might  have.  To 
remove  so  shadowy  and  slight  an  objection,  the  legislature  thought  proper 
to  clothe  the  city  court,  consisting  of  its  judge,  clerk,  sheriff,  and  jurors, 
with  authority  to  try  the  defendant,  and  he  cannot  now  object  to  it: ''  Per 
O'Neall,  J.,  City  Council  v.  Pepper,  1  Rich.  (So.  Car.)  Law,  364, 1845 ;  City 
Council  v.  King,  4  McNott  (So.  Car.),  487;  Corwein  v.  Hames,  11  Johns.  76, 
1814.  The  mayor  is  not  disqualified  from  presiding  in  the  Mayor's  Court, 
before  which  the  proceedings  are  held,  from  the  fact  that  he  is  the  owner 
of  a  lot  on  the  street  sought  to  be  widened :  The  Mayor  v.  Long,  31  Mo. 
369,  1861. 


356  MUNICIPAL   CORPORATIONS.  [CH.  XIII. 

for  the  preservation  of  the  peace,  good  order,  safety,  and 
health  of  the  place,  and  which  relate  to  minor  acts  and  mat- 
ters not  embraced  in  the  public  criminal  statutes  of  the  state, 
are  not  usually  or  properly  regarded  as  criminal,  and  hence 
need  not  necessarily  be  prosecuted  by  indictment  or  tried  by 
a  jury,1  An  act  of  the  legislature  authorizing  the  arrest  of 
professional  thieves  and  burglars  frequenting  any  railroad 
depot,  &c,  in  the  city  of  Philadelphia,  and  their  commitment 
by  the  mayor,  without  a  trial  by  jury,  is  not  in  conflict  with 
the  provision  of  the  constitution  of  the  state,  which  guarantees 
"that  trial  by  jury  shall  be  as  heretofore,  and  the  right  thereof 
remain  inviolate."  2 

1  Williams  v.  Augusta,  4  Geo.  509, 1848;  approved,  Floyd  v.  Commission- 
ers, 14  Geo.  358, 1853 ;  Vason  v.  Augusta,  38  Geo.  542,  1868 ;  State  v.  Gut- 
tirrez,  15  La.  An.  190 ;  Tierney  v.  Dodge,  9  Minn.  166, 186 ;  Byers  r>.  Com- 
monwealth, 42  Pa.  St.  89 ;  1  Bish.  Cr.  Pr.  Sec.  758 ;  State  v.  Conlin,  27  Vt. 
318.  Thus,  in  New  Jersey  it  is  held  that  legislative  authority  to  municipal 
courts  to  punish  violations  of  ordinances  by  a  limited  fine  and  imprison- 
ment, without  providing  for  a  trial  by  jury,  is  not  in  conflict  with  the  con- 
stitutional provision  that  "  the  right  of  trial  by  jury  shall  remain  invio- 
late : "  McGear  v.  Woodruff,  33  N.  J.  Law,  213,  1868 ;  Johnson  ».  Barclay,  1 
Harr.  (N.  J.)  1.    Ante,  Sees.  300,  344,  345. 

Treating  of  this  subject,  Mr.  Sedgwick  says :  "  Extensive  and  summary 
police  powers  are  constantly  exercised  in  all  the  states  of  the  Union  for  the 
repression  of  breaches  of  the  peace  and  petty  offences  ;  and  these  statutes 
are  not  supposed  to  conflict  with  the  constitutional  provisions  securing  to 
the  citizens  a  trial  by  jury : "  Stat,  and  Const.  Law,  548,  549 ;  Cooley,  Const. 
Lim.  596.  In  Williams  v.  Augusta,  supra,  proceedings  before  a  city  council 
for  violations  of  its  ordinances,  although  punishable  by  fine,  were  consid- 
ered not  to  be  "  criminal  cases  "  within  the  'meaning  of  the  constitution  of 
Georgia,  vesting  the  jurisdiction  of  all  criminal  cases  in  tribunals  other  than 
corporation  courts,  the  court  being  of  opinion  that  the  term  "  criminal 
cases,"  as  used  in  the  constitution,  had  reference  to  such  acts  and  omissions 
as  are'  in  violation  of  the  public  laws  of  the  state,  and  not  to  violations  of 
local  ordinances  made  for  the  internal  police  and  government  of  a  city.  In 
the  state  last  named  the  settled  rule  is  that  the  same  act  cannot  be  twice 
punished  —  once  by  the  municipality  and  once  by  the  state  —  and  the  rule 
is  adopted  that  the  municipal  power  ends  where  the  right  to  indict  under 
state  authority  exists,  as  any  other  rule  would  deprive  the  accused  of  the 
right  to  a  jury  trial:  Jenkins  v.  Thomasville,  ?5  Geo.  145,  1866;  Vason  v. 
Augusta,  supra;  Savanna  v.  Hussey,  21  Geo.  80,  1857.  So  in  Michigan: 
People  «.  Slaughter,  2  Doug.  (Mich.)  334,  1842.  Otherwise  in  Kentucky : 
Williamson  v.  Commonwealth,  4  B.  Mon.  146,  1843.    Ante,  Sees.  302,  344. 

2  Byers  v.  Commonwealth,  42  Pa.  St.  89.  In  this  case  the  extent  of  the 
right  of  trial  by  jury  at  common  law  is  thoroughly  examined  in  a  valuable 


CH.  XIII.]  MUNICIPAL    COURTS.  357 

§  362.  But  where  the  legislature  undertakes  to  confer  upon 
the  courts  of  the  corporation,  or  where  the  corporation  seeks 
to  give  its  court  summary  jurisdiction  to  try  persons  for  acts 
which  are  indictable,  or  are  criminal  offences,  it  not  unfre- 
quently  happens  that  some  provision  of  the  constitution,  de- 
signed to  protect  the  rights  or  liberty  of  the  citizen,  is  violated. 
Thus,  under  a  constitution  declaring  "  that  no  freeman  shall 
be  put  to  answer  any  criminal  charge,  but  by  indictment,"  etc., 
and  "  that  no  freeman  shall  be  convicted  of  any  crime,  but  by 
the  unanimous  verdict  of  a  jury  of  good  and  lawful  men  in 
open  court,  as  heretofore  used,"  an  act  of  the  legislature  which 
gives  to  an  officer  of  an  incorporated  town  the  power  of  trying 
assaults  and  batteries,  or  other  crimes,  is,  in  the  opinion  of  the 
Supreme  Court  of  North  Carolina,  void,  because  it  violates 
both  of  these  provisions  of  the  constitution.1 

opinion  by  Strong,  J.,  now  one  of  the  justices  of  the  Supreme  Court  of  the 
United  States,  and  the  validity  of  summary  convictions  sustained.  See 
chapter  on  Ordinances,  ante.  The  doctrine  may  be  considered  as  settled 
in  Pennsylvania  that  municipal  corporations  are  not  within  the  constitu- 
tional guaranty  of  jury  trial,  and  that  the  right  to  a  trial  by  jury  may  be 
withheld  by  the  legislature  from  new  offences,  and  from  new  jurisdictions 
created  by  statute  without  common  law  powers,  and  from  proceedings  out 
of  the  course  of  the  common  law:  Bhines  v.  Clark,  51  Pa.  St.  96,  1865,  per 
Woodward  C.  J. ;  Dunmore's  Appeal,  52  Pa.  St.  374,  1866 ;  Ewing  a.  Filley, 
43  Pa.  St.  384,  1862 ;  Van  Swartow  v.  Commonwealth,  24  Pa.  St.  131,  1854. 
See  Barter  v.  Commonwealth,  3  Pa.  (Pen.  &  W.)  253,  1831.  A  different 
view  is,  to  some  extent,  taken  by  the  Supreme  Court  of  Vermont  under  the 
constitution  of  that  state,  whose  language  is,  that  "  when  an  issue  of  fact 
proper  for  cognizance  of  a  jury  shall  be  joined  in  a  court  of  law,  the  parties 
have  a  right  to  trial  by  jury  which  ought  to  be  held  sacred."  In  the  opinion 
of  the  court,  a  public  corporation,  although  the  liability  on  the  corporation 
be  created  by  statute,  is  entitled  to  a  jury  trial,  and  therefore  a  statute  pro- 
viding for  a  compulsory  and  final  reference  of  a  case,  in  its  nature  one  at 
common  law,  is  void,  and  the  constitution  applies  to  all  controversies 
fit  to  be  tried  by  a  jury,  although  the  particular  right  was  created  by  statute 
enacted  after  the  adoption  of  the  constitution :  Plimpton  v.  Somerset,  33  Vt. 
283,  1860.  It  would,  perhaps,  be  going  too  far  to  say  that  municipal  cor- 
porations are  not  in  any  case  within  the  constitutional  guaranty  of  a  trial  - 
by  jury,  and  yet  it  would  not  follow  that  provision  might  not  be  made  for 
the  trial  in  a  summary  way,  before  municipal  courts,  of  petty  or  police 
offences.    Ante,  Chap.  IV.    Supra,  Sees.  300-302,  344,  345, 

1  State  v.  Moss,  2  Jones  (N.  C),  Law,  66,  1854.  See  Tierney  v.  Dodge,  9 
Minn.  166,  1864.  The  constitution  of  Louisiana  (Art.  103)  requires  that 
"  prosecutions  shall  be  by  indictment  or  information.    The  accused  shall 


358  MUNICIPAL   CORPORATIONS.  [CH.  XIII. 

§  363.  A  similar  view  waa  taken  in  the  state  of  Arkansas, 
the  constitution  of  which  provided  that  "  no  man  shall  be  put 
to  answer  any  criminal  charge  hut  by  presentment,  indictment, 
or  impeachment ;  "  and  it  was  held  that  the  legislature  could ' 
not  confer  upon  the  corporation  courts  of  a  city  the  power  to 
punish  an  assault  and  battery  —  this  being  a  criminal  charge 
—without  presentment  or  indictment ;  and  it  was  consequently 
decided  that  the  judgment  of  conviction  of  such  a  court  for  an 
assault  and  battery  is  coram  nonjudice,  and  constitutes  no  bar 
to  a  prosecution  by  indictment  in  the  courts  of  the  state  for  the 
same  offence.1 

§  364.  The  same  doctrine  was  declared  in  Michigan.  The 
constitution  of  that  state  contained  a  provision  that  "  no  person 
shall  be  held  to  answer  for  a  criminal  offence  unless  on  the  pre- 
sentment of  a  grand  jury,  except  cases  cognizable  by  justices 
of  the  peace,"  &c. ;  and,  by  the  statutes  of  the  state,  the  keep- 
ing of  a  bawdy  house  was  declared  to  be  an  offence  punishable 
by  fine  and  imprisonment.  Under  this  state  of  the  law  the 
city  of  Detroit  was  empowered  by  the  legislature  "  to  make  all 
such  by-laws  and  ordinances  as  may  be  deemed*  expedient  by 
the  common  council  for  effectually  preventing  and  suppressing 
houses  of  ill-fame  within  the  limits  of  the  city."  It  was  held 
that  the  term  "  criminal  offence  "  in  the  constitution  included 
both  felonies  and  misdemeanors,  and  embraced  the  offence 
(which  was  such  both  at  common  law  and  by  the  statute  of  the 
state)  of  keeping  a  house  of  ill-fame,  and  therefore  an  ordi- 
nance of  the  common  council  prescribing  the  punishment  for 

have  a  speedy  trial  by  an  impartial  jury  of  the  vicinage."  Another  article 
(124)  provides  that  "  the  mayors,  recorders,  &c,  may  be  commissioned,  and 
the  legislature  may  vest  in  them  such  criminal  jurisdiction  as  may  be 
necessary  for  the  punishment  of  minor  crimes  and  offences,  as  the  police 
and  good  order  of  the  city  of  New  Orleans  may  require."  It  was  held  that 
Article  103  laid  down  the  general  rule,  to  which  Article  124  was  an  excep- 
tion, and  that  under  the  latter  article  it  was  competent  for  the  legislature 
to  provide  for  the  prosecution  of  minor  offences,  without  indictment  or 
jury  trial,  in  the  Recorder's  Court :  "  State  v.  Guttirrez,  15  La.  An.  190,  1860. 
1  Rector  v.  State,  6  Ark.  (1  Eng.)  187,  1845 ;  Durr  v.  Howard,  6  Ark.  461 ; 
Lewis  v.  State,  21  Ark.  211.  But  it  is  held  in  the  same  state  that  a  corpora- 
tion court  may  punish  a  person  for  using  obscene  language  in  the  streets, 
because  such  an  offence  is  not  declared  criminal  by  any  statute  of  the  state : 
Slattery,  Ex  parte,  3  Ark.  484. 


CH.  XIII.]  MUNICIPAL   COURTS.  359 

keeping  such  a  house  within  the  city  and  providing  for  the 
trial  and  conviction  of  the  offenders  in  the  municipal  court 
without  indictment,  wasi  unconstitutional,  the  judgment  of  the 
•court  resting  upon  the  principle  that  under  the  constitutional 
provision  quoted,  there  could  be  no  summary  conviction  under 
an  ordinance  for  that  which  is  a  criminal  offence  by  the  gen- 
eral laws  of  the  state.1 

§  365.  So,  by  the  constitution  of  Texas,  it  is  provided  that 
"  in  all  cases  in  which  justices  of  the  peace  or  inferior  tribunals 
shall  have  jurisdiction  of  causes  where  the  penalty  is  fine  and 
imprisonment  (except  in  cases  of  contempt),  the  accused  shall 
have  the  right  of  trial  by  jury,"  and  under  this  it  was  held  that 
the  mayor's  court  could  not  constitutionally  be  invested  with 
power  to  try  summarily,  and  without  a  jury,  a  person  for  as- 
sault and  battery,  in  violation  of  the  ordinances  of  the  corpo- 
ration, where  the  mayor  was  authorized  to  impose  a  fine.2 

§  366.  In  Zylstra  v.  The  Corporation  of  Charleston,  it  ap- 
peared that  the  organic  act  of  the  city  gave  to  the  common 
council  power  to  affix  and  levy  fines  for  all  offences  against 
their  by-laws,  and  there  was  no  limitation  of  the  amount  of  the 
fines.  In  this  respect  the  charter  was  silent.  The  "  Court  of 
"Wardens  "  (the  corporation  tribunal)  had  the  power  expressly 
given  to  it  to  commit  for  fines  and  penalties.  Under  these 
circumstances  the  corporation  of  Charleston  passed  an  ordi- 
nance prohibiting  the  exercise  of  the  trade  of  candle  and  soap 
making  within  the  limits  of  the  city,  under  a  penalty  of  £100. 
Zylstra  was  prosecuted  in  the  Court  of  Wardens  —  composed 

1  People  v.  Slaughter,  2  Doug.  (Mich.)  334,  1842,  note  ;  and  see  Welch  v. 
People,  ib.  332,  1846.  But  in  Kentucky,  the  constitution  of  which  provides 
that  "no  person  shall,  for  any  indictable  offence,  be  proceeded  against 
criminally  by  information,"  and  that  "  all  prosecutions  shall  be  carried  on 
in  the  name  and  by  the  authority  of  the  commonwealth,"  the  legislature 
may  authorize  a  city  corporation  to  proceed  in  its  name  against  offenders 
for  violating  its  ordinances,  and  punish  them  by  fine,  although  the  offence, 
as  in  the  case  before  the  court  (an  assault  and  battery),  is  indictable  under 
the  laws  of  the  state.  The  court  regarded  the  proceeding  in  the  name  of 
the  corporation  as  of  a  quasi  civil  or  penal  nature,  and  not  as  criminal :  Wil- 
liamson v.  Commonwealth,  4  B.  Mon.  146, 1843. 

2  Burns  v.  La  Grange,  17  Texas,  415, 1856 ;  S.  P.  Smith  v.  San  Antonio,  ib. 
643. 


360  MUNICIPAL   COKPORATIONS.  [CH.  XIII. 

of  members  of  the  city  council  —  for  a  violation  of  this  by-law, 
and  fined  by  this  court  £100.  On  his  motion  to  obtain  a  prohi- 
bition it  was  held,  under  the  constitution  of  that  state,  that  the 
proceedings  of  the  Court  of  Wardens  were  void,  not  being  ac- 
cording to  the  lex  terrce  recognized  by  Magna  Oharta,  and 
expressly  adopted  by  the  state  constitution.  And  the  judges 
who  expressed  themselves  on  that  point  were  of  opinion,  under 
the  state  constitution,  that  that  tribunal  could  not  be  invested 
with  a  jurisdiction  greater  than  that  exercised  by  justices  of 
the  peace,  unless  there  was  provision  made  for  securing  a  trial 
by  jury,  which  in  the  instance  before  the  court  had  not  been 
done.1 

1  Zylstra  v.  Charleston,  1  Bay,  382,  1794. 

In  holding  that  the  charter  of  the  city  of  Lancaster  did  not  confer  upon 
the  councils  the  right  to  vest  in  the  mayor  and  aldermen  jurisdiction  to  con- 
vict summarily,  and  imprison  in  default  of  payment  of  the  penalty  affixed 
to  an  ordinance,  Gibson,  C.  J.,  remarked :  "  Now,  if  the  charter  even  pur- 
ported to  confer  a  power  to  imprison  on  summary  conviction  [for  a  mis- 
demeanor] and  without  appeal  to  a  jury,  it  would  be  so  far  unconstitutional 
and  void : "    Barter  v.  Commonwealth,  3  Pa.  (Pen.  &  W.)  253,  1831. 

A  statute  providing  for  summary  conviction  for  a  new  offence  before  infe- 
rior jurisdictions,  without  a  jury,  does  not  violate  the  provision  of  the  con- 
stitution that  "  trial  by  jury  shall  be  as  heretofore,  and  the  right  thereof  re- 
main inviolate :  "  Van  Swartow  v.  Commonwealth,  24  Pa.  St.  131,  1854.  See, 
also,  Boring  v.  Williams,  17  Ala.  510 ;  Tines  v.  The  State,  26  Ala.  165  ;  In  re 
Powers,  25  Vt.  261 ;  Murphy  v.  People,  2  Cow.  815 ;  Shirley  v.  Lunenburg, 
11  Mass.  379 ;  Rhines  v.  Clark,  51  Pa.  St.  96.    Supra,  Sec.  361. 

As  to  the  right,  under  particular  constitutional  and  statutory  provisions, 
to  a,  jury  trial,  for  violations  of  municipal  by-laws :  Thomas  v.  Ashland,  12 
Ohio  St.  124  ;  Work  v.  State,  2  ib.  296  ;  Gray  v.  State,  2  Harring.  (Del.)  76, 
1836;  Low  v.  Commissioners  of  Pilotage,  B.  M.  Charlt.i(Geo.)  302;  Green  v. 
Mayor,  ib.  368,  371 ;  Williams  v.  Augusta,  4  Geo.  509 ;  approved,  Floyd  v. 
Commissioners,  14  Geo.  354,  1853 ;  State  v.  Guttirrez,  15  La.  An.  190. 

Jurisdiction  of  mayor's,  recorder's,  and  police  courts  under  statutes  or  special 
charters :  Commonwealth  v.  Pindar,  11  Met.  539  ;  Commonwealth  v.  Boark, 
8  Cush.  210 ;  Same  v.  Emery,  11  Cush.  406 ;  Elder  v.  Dwight  Manufacturing 
Company,  4  Gray,  201 ;  State  v.  Bicker,  32  N.  H.  179 ;  Myers  o.  People,  26 
111.  173 ;  Bice  v.  State,  3  Kansas,  141 ;  State  v.  Young,  3  Kansas,  445 ;  Malone 
v.  Murphy,  2  Kansas,  250 ;  Gray  1>.  State,  2  Harring.  (Del.)  76 ;  Hutchins  v. 
Scott,  4  Halst.  (N.  J.)  218 ;  Cincinnati  v.  Gwynne,  10  Ohio,  192 ;  14  ib.  250, 
603  ;  Markle  v.  Akron,  14  Ohio,  586 ;  Weeks  v.  Foreman,  1  Harris.  (N.  J.), 
237  ;  Truchelut  v.  City  Council,  1  Nott  &  McC.  227 ;  Thornton  v.  Smith,  1 
Washing.  (Va.)  E.  106;  McMullen  v.  City  Council,  1  Bay  (South  Car.),  46; 
Zylstra  v.  Charleston,  ib.  382  ;    Willis  v.  Booneville,  28  Mo.  543 ;    Fayette  v. 


CH.  XIII.]  MUNICIPAL   COURTS.  361 

Sufficient  of  the  Right  of  a  Jury  Trial  is  Grioen  by  Appeal. 

§  367.  It  is,  however,  the  prevailing  doctrine,  that  although 
the  charge  or  matter  in  the  municipal  or  local  courts  be  one, 
in  respect  of  which  the  party  is  entitled  to  a  trial  by  jury,  yet 
if  by  an  appeal,  clogged  with  no  unreasonable  restrictions,  he 
can  have  such  a  trial  as  a  matter  of  right  in  the  appellate 
court,  this  is  sufficient,  and  his  constitutional  right  to  a  jury 
trial  is  not  invaded  by  the  summary  proceeding  in  the  first 
instance.1 

Review  of  Proceedings  by  Superior  Tribunals. 

§  368.  With  respect  to  inferior  jurisdictions,  the  right  to 
review  their  proceedings  by  the  superior  tribunals  cannot  be 
taken  away  unless  the  intention  of  the  legislature  to  this  effect 
is  expressed  with  unequivocal  clearness.  The  authorities  cited 
in  the  note  will  show  the  great  length  to  which  the  courts  go 
in  preserving  the  right  to  review  the  proceedings  of  subordi- 
nate tribunals,  administered  frequently  by  men  without  profes- 
sional or  judicial  knowledge  or  experience.  A  declaration  by 
the  statute  concerning  an  inferior  tribunal,  that  its  proceedings 
"  shall  be  final  and  conclusive,"  or  "  without  appeal,"  etc.,  will 
not  deprive  a  party  of  the  right  of  review  by  certiorari,  error, 
or  the  proper  proceeding.2  But  where  it  is  declared  with  res- 
pect to  a  court  of  general  and  superior  jurisdiction,  as  of  the 

Shafroth,  25  Mo.  445 ;    Sill  v.  Corning,  15  N.  Y.  297 ;    Goodrich  v.  Brown,  30 
Iowa,  291,  1870.  , 

Extent  of  jurisdiction  territorially*  State  v.  Clegg,  27  Conn.  593  ;  Covill  v. 
Phy  (process),  26  111.  432  ;  State  *.  McArthur,  13  Wis.  383. 

1  Stewart  v.  Mayor,  7  Md.  501 ;  Morford  v.  Barnes,  8  Yerger  (Tenn.),  444 ; 
McDonald  i).  Schell,  6  Serg.  &  Bawle,  240 ;  Beers  v.  Beers,  4  Conn.  535 ; 
Jones  v.  Robbins,  8  Gray,  329  ;  Dorgan  v.  Boston,  12  Allen,  223 ;  Sedg.  St. 
and  Const.  Law,  549 ;  Cooley,  Const.  Lim.  410. 

2  Rex  v.  Commissioners,  2  Keeble,  43 ;  Rex  v.  Morely,  2  Burr.  1040  ;  Law- 
ton  v.  Commissioners,  2  Caines  (N.  Y.),  179, 181 ;  Starr  v.  Trustees,  6  Wend. 
564 ;  People  v.  Mayor,  2  Hill  (N.  Y.),  9 ;  Tierney  v.  Dodge,  9  Minn.  166 ;  Ex 
parte  Heath,  3  Hill  (N.  Y.),  42,  52,  and  cases  cited  and  reviewed  by  Cowen,  J. 

A  kindred  subject  is  treated  in  the  chapter  on  Municipal  Officers — "Spe- 
cial tribunal  to  determine  election  contests  for  municipal  offices,"  ante,  Sec. 
139,  and  it  is  there  shown  that  the  ordinary  constitutional  provision  that 
the  judicial  power  shall  be  vested  in  certain  courts  does  not  disable  the 
46 


362  .  MUNICIPAL    CORPORATIONS.  [CH.  XIII. 

Supreme  Court  of  New  York,  that  its  action  (for  example,  in 
confirming  appraisements  for  opening  streets,  or  under  a  rail- 
road   act)    "  shall    be  final   and    nondusio&    upon    the   parties 

legislature  from  providing  that  the  council  of  municipal  corporations  may 
finally  determine  the  validity  of  the  election  of  corporation  officers :  May- 
or, &c.  v.  Morgan,  7  Martin  (La.),  1 ;  9  ib.  (N.  S.^  3S1,  1828 ;  State  o.  Fitzger- 
ald, 44  Mo.  425,  1869  ;  Ewing  ».  Filley,  43  Pa.  St.  384 ;  State  v.  Johnson,  17 
Ark.  407.  But  the  supervisory  jurisdiction  of  the  superior  courts  will  not 
be  held  to  be  taken  away  by  mere  negative  words  :  Grier  v.  Shackleford, 
Const.  Rep.  642  ;  State  v.  Fitzgeraid,  supra ;  Commonwealth  v.  McCloskey, 
2  Eawle,  369 ;  Ex  parte  Strahl,  16  Iowa,  369  ;  State  v.  Funck,  17  Iowa,  365  ; 
Bateman  v.  Megowan,  1  Met.  (Ky.)  533  ;  Wammacks  v.  Holloway,  2  Ala.  31  ; 
Hummer  v.  Hummer,  3  G.  Greene,  42 ;  State  v.  Mario w,  15  Ohio  St.  114 ; 
Attorney  General  v.  Corporation  of  Poole,  4  Mylne  &  Cr.  17 ;  Attorney  Gen- 
eral v.  Aspinwall,  ib.  613 ;  Parr  v.  Attorney  General,  8  CI.  &  F.  409 ;  Taylor 
v.  Americus,  39  Geo.  59.    Post,  Chaps.  XX.  XXI.  XXII. 

The  Supreme  Court  of  Michigan,  in  reviewing  on  certiorari,  the  legality 
of  a  iconviction  of  the  defendant  in  the  recorder's  court  on  a  complaint  for 
violating  a  municipal  ordinance,  speaking  of  the  extent  of  the  revisory  pow- 
er of  the  superior  tribunals,  and  the  nature  and  purposes  of  the  municipal  tri- 
bunals, says :  "  The  power  of  reviewing  upon  certiorari  judicial  proceedings 
of  inferior  tribunals  and  bodies  not  according  to  the  course  of  the  common 
law,  has  been  long  exercised  in  England,  as  well  as  in  this  country.  The 
power  has  been  jealously  maintained,  and  has  been  deemed  necessary  to 
prevent  oppression.  There  are  certain  classes  of  questions  which,  by  com- 
mon understanding  from  time  immemorial,  belong  to  the  course  of  judicial 
inquiry  under  the  laws  of  the  land.  The  common  law,  and  the  various 
charters  and  bills  of  rights,  recognized  and  assured  the  right  to  such  an  in- 
quiry. And  the  constitution,  in  apportioning  the  judicial  power,  as  well  as 
in  affirming  the  immunity  of  life,  liberty,  and  property,  has  always  been 
understood  to  guarantee  to  each  citizen  the  right  to  have  his  title  to  prop- 
erty, and  other  legal  privileges,  determined  by  the  general  tribunals  of  the 
state.  These  municipal  courts,  so  fart  as  they  act  under  city  by-laws,  are 
not  designed  to  decide  between  man  and  man,  or  to  administer  general 
laws.  They  are  ordained  to  prevent  disorder  in  matters  of  local  conveni- 
ence, and  to  regulate  the  use  of  public  and  quasi  public  easements,  so  as  tot 
prevent  confusion.  If  in  exercising  this  power  they  can  incidentally  de- 
cide upon  the  rights  of  private  property  so  as  to  determine  its  enjoyment 
without  review,  there  would  seem  to  be  a  practical  annihilation  of  the  right 
to  resort  to  the  general  tribunals  and  the  common  law  :  "  Per  Campbell,  J., 
Jackson  v.  People,  9  Mich.  Ill,  117,  1860.    Further,  see  Chap.  XXII.  post. 

An  appeal  from  inferior  tribunals  does  not  exist  unless  plainly  given: 
People  v.  Police  Justice,  7  Mich.  456 ;  Conboy  v.  Iowa  City,  2  Iowa,  90 ;  Mus- 
catine v.  Steck,  7  Iowa,  505 ;  Dubuque  v.  Rebman,  1  Iowa,  444.  Certiorari, 
on  the  other  hand,  will  lie  unless  plainly  denied,  or  other  specific  remedy 
be  given :  Cunningham  v.  Squires,  2  West  Va.  422,  1865.  Post,  Sec.  476, 
and  chapter  on  Remedies  Against  Illegal  Corporate  Acts,  post. 


CH.  XIII.]  MUNICIPAL    COURTS.  363 

interested  and  upon  all  other  persons,"  the  right  of  appeal, 
which  would  otherwise  exist  from  the  decision  of  such  court 
to  a  still  higher  tribunal,  as  to  the  Court,  of  Appeals,  is  des- 
troyed.1 A  charter  provision  to  the  effect  that  appeals  and 
writs  of  error  from  judgments  of  the  mayor,  in  cases  arising 
under  the  charter,  should  only  be  allowed  in  cases  where  the 
fine  was  over  five  dollars,  was  considered  as  evincing  the  leg- 
islative intention  that  in  cases  where  the  fine  was  under  that 
sum  the  judgment  should  be  final,  and  hence  a  writ  of  prohi- 
bition will  not  lie  to  restrain  its  collection,  nor  can  it  be  re- 
viewed on  certiorari.2 

§  369.  In  Virginia  it  is  decided  that  in  a  proceeding  before 
the  miyor  or  a  justice  to  impose  a  penalty  on  a  party  for  ob- 
structing a  street,  the  mayor  or  justice  cannot,  if  the  defendant 
bona  fide  claims  title  to  the  land  claimed  as  a  street,  inquire 
into  the  validity  of  the  claim,  the  court  holding  that  by  the 
principles  of  the  common  law  (which  are  not  changed  by  the 
statutes),  a  bona  fide  assertion  of  title  to  property  or  to  an  in- 
corporeal hereditament,  or  real  franchise,  ousted  the  jurisdic- 
tion of  these  inferior  magistrates  or  tribunals.3 

1  Matter  of  Canal  and  Walker  streets,  12  N.  Y.  (2  Kern.)  406,  1855 ;  New 
York,  &c.  Railroad  Company  v.  Marvin,  11  ib.  (1  Kern.)  276. 

2  Wertheimer  v.  Mayor,  &c,  29  Mo.  254,  1860. 

8  Warwick  v.  Mayo,  15  Gratt.  ( Va.)  528,  1860.  To  the  same  effect, 
see  Jackson  v.  People,  9  Mich.  Ill,  1860 ;  Grand  Rapids  v.  Hughes,  15  Mich. 
54,  1866.  See  chapter  on  Streets.  What  record  of  conviction  before  corpo- 
ration officers  or  courts  should  show :  Keeler  v.  Milledge,  4  Zabr.  (N.  J.) 
142 ;  Muscatine  v.  Steck,  7  Iowa,  505.    See  Chap,  XXII.  post. 


364  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 


CHAPTER  XIV. 

Contracts. 

§  370.  The  mode  of  enforcing  the  contracts  of  municipal 
corporations  will  be  considered  hereafter.1  In  this  chapter  we 
will  treat,  in  the  order  below  indicated,  of  the  power  of  such 
corporations  to  make  contracts  of  different  kinds,  the  mode  of 
exercising  the  power,  and  the  effect  of  transcending  it : 

1.  Extent  of  Power  to  Contract,  and  How  Conferred  — 
Sees.  371,  372. 

2.  Mode  -of  Exercising  the  Power  —  Sec.  ,373. 

3.  Seal  Wot  Necessary  Unless  Required  —  May  be  Con- 
cluded by  Vote  or  Ordinance  —  SecB.  374,  375. 

4.  When  Bound  by  Contracts  Made  by  Agents  —  Mode  of 
Execution  —  Sees.  376-380. 

5.  Contracts    Beyond    Corporate    Powers   Void — Ultra 
Tires  a  defence  —  Sees.  381,  382. 

6.  Implied  Contracts  —  When  Deducible  —  Sees  383,  384. 

7.  Ratification  of  Unauthorized  Contract  —  Sees.  385-387. 

8.  Provision  Requiring  Letting  to  Lowest  Bidder  —  Sees. 
388-392. 

9.  Contract  of  Suretyship  —  Sec.  393. 

10.  Rights  and  Liabilities  as  Respects  Authorized  Con- 
tracts—  Illustrations — ■  Cases  Mentioned.  Power  to  Settle 
Disputed  Claims  —  to  Give  Extra  Compensation  —  to  Employ 
Attorneys  — Sees.  394-399. 

11.  Contracts  for  Publio  Works  —  Rights  of  Contractors 
—  Sees.  400-403. 

12.  Same  —  Corporate  Control  Under  Stipulation  —  Sees. 
400-403. 

13.  Evidences  of  Indebtedness  —  Negotiable  Bonds  —  Sees. 
404,  405. 

1  See  post,  Chaps.  XX.  XXII.  XXIII.  Legislative  power  over  contracts 
made  by  municipal  corporations.    See  Chap,  IV.  ante. 


CH.  XIV.]  CONTRACTS.  365 

14.  Ordinary  "Warrants  or  Orders  —  Their  Legal  Nature 
—  Sees.  406,  407. 

15.  Liability  of  Indorsers  Thereof —  Sec.  408." 

16.  Payment  and  Cancellation  of  Orders  and  Warrants  — 
Sec.  409. 

17.  Rights  and  Remedies  of  Holders  Thereof —  Sees.  410, 
411. 

18.  Defences  Thereto —  Ultra  Vires  —  Fraud  —  Want  of 
Consideration  —  Sec.  412. 

19.  Orders  Payable  out  of  a  Particular  Fund  —  Sec.  413. 

20.  Interest  on  Corporate  Indebtedness  —  Sec.  414. 

21.  Railroad  Aid  Bonds  —  Course  of  Decision  in  U.  S.  Su- 
preme Court —  Sees.  415,  416. 

22.  Leading  Cases  in  National  Supreme  Court  on  the  Sub- 
ject Noticed  —  Sees.  417-422. 

23.  Decisions  in  State  Courts  Referred  to  —  Conclusion 
Stated  — Sees.  423-426. 

§  371.  Extent  of  Power,  and  How  Conferred. —  In  determin- 
ing the  extent  of  the  power  of  a  municipal  corporation  to  make 
contracts,  and  in  ascertaining  the  mode  in  which  the  power  is 
to  be  exercised,  the  importance  of  a  careful  study  of  the  char- 
ter or  incorporating  act,  and  the  general  legislation  of  the 
state  on  the  subject,  if  there  be  any,  cannot  be  too  strongly 
emphasized.  Where  there  are  express  provisions  on  the  sub- 
ject, these  will,  of  course,  measure,  as  far  as  they  extend,  the 
authority  of  the  corporation.  The  power  to  make  contracts, 
and  sue  and  be  sued  thereon,  is  usually  conferred,  in  general 
terms,  in  the  incorporating  act.  But  where  the  power  is  con- 
ferred in  this  manner  it  is  not  to  be  construed  as  authorizing 
the  making  of  contracts  of  all  descriptions,  but  only  such  as 
are  necessary  and  usual,  fit  and  proper,  to  enable  the  corpora- 
tion to  secure  or  carry  into  effect  the  purposes  for  which  it  was 
created ;  and  the  extent  of  the  power  will  depend  upon  the 
other  provisions  of  the  charter  defining  the  matters  in  respect 
of  which  the  corporation  is  authorized  to  act.  To  the  extent 
necessary  to  execute  the  special  powers  and  functions  with 
which  it  is  endowed    by  its    charter,    there    is,    indeed,  an 


366  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

implied  or  incidental  authority  to  contract  obligations  and  sue  and 
be  sued  in  the  corporate  name.1 
» 
§  372.  Thus,  if  the  corporation  is  authorized  to  erect  mar- 
kets, it  may  contract  to  buy,  or  may  receive  a  grant  of  land,  on 
which  to  place  market  buildings,  and  it  may  make  contracts  for 
the  erection  of  market  houses.  As  it  is  the  general  practice  in 
granting  municipal  charters  and  in  general  acts  for  the  incor- 
poration of  towns  and  cities,  to  enumerate  their  powers  and 
define  their  duties,  it  will  suffice  in  this  place  to  remark  gen- 
erally that  the  authority  to  enter  into  contracts  necessary  and 

1  1  Kyd,  69,  70  ;  2  Kent  Com.  224 ;  Angell  &  Ames,  Sees.  110, 271 ;  Galena 
v.  Commonwealth,  48  111.  423, 1868  ;  Straus  v.  Insurance  Company,  5  Ohio 
St.  59, 1855  ;  Chaffee  v.  Granger,  6  Mich.  51 ;  Douglass  v.  Virginia  City,  5 
Nev.  147,  1869 ;  Goodrich  v.  Detroit,  12  Mich.  279 ;  Bank  of  Columbia  v. 
Patterson,  7  Cranch,  299,  1813 ;  Siebrecht  v.  New  Orleans,  12  La.  An.  496, 
1857  ;  Bateman  v.  Mayor,  &c.  3  Hurl.  &  Nor.  322,  1858. 

Under  general  authority  to  make  all  contracts  necessary  for  its  welfare,  a 
city  may  contract  for  water  works :  Rome  v.  Cabot,  28  Geo.  50 ;  Hall  v. 
Houghton,  8  Mich.  458.  For  grading  streets:  Sturtevant  v.  Alton,  3  McLean, 
393.  For  "  breakwater "  to  protect  streets  of  a  city  on  the  lake :  Miller  v. 
Milwaukee,  14  Wis.  642.  Legislative  power  over  municipal  contracts:  Ante, 
Chap.  IV. 

The  city  of  Richmond  possessed,  under  its  charter,  all  the  powers  of  mu- 
nicipal corporations,  including  the  power  "  to  contract  and  be  contracted 
with,"  and  its  council  was  specially  empowered  to  "  pass  all  by-laws  which 
they  shall  deem  necessary  for  the  peace,  comfort,  convenience,  good  order, 
good  morals,  health,  or  safety  of  the  city,  or  of  the  people  or  property 
therein."  In  April,  1865,  in  anticipation  of  the  evacuation  of  the  city  by 
the  confederate  army  and  the  entry  of  the  national  forces,  the  city  council 
ordered  the  destruction  of  all  the  liquor  in  the  city,  and  pledged  the  faith  of  the 
city  for  the  payment  of  its  value,  and  it  was  decided  by  the  Court  of  Ap- 
peals that  under  the  provisions  of  the  charter  above  mentioned  the  council 
had  authority  to  make  the  order  and  pledge,  and  hence  the  city  was  res- 
ponsible for  the  value  of  liquor  destroyed  under  the  order  of  the  council : 
Jones  «.  Richmond,  18  Gratt.  (Va.)  517, 1868.  Upon  the  general  principles 
of  construction,  the  author  doubts  whether  the  order  for  the  destruction  Of 
the  liquors  was  within  the  scope  of  the  corporate  powers  of  the  city :  Ante, 
p.  101,  Sec.  55.  In  the  absence  of  a  provision  in  the  statute  or  ordinances 
to  the  contrary,  a  municipal  corporation  may  lawfully  enter  into  a  contract 
with  an  officer  of  the  corporation :  Albright  v.  Town  Council,  9  Rich. 
(South  Car.)  Law,  399.  In  this  case,  a  contract  entered  into  between  the 
town  council  and  intendant  of  a  town,  whereby  the  latter  agreed  to  keep 
the  streets  in  repair,  was  held  valid.  See,  also,  Railroad  Company  v.  Clag- 
horn,  Speer's  Eq.  562. 


CH.  XIV.]  CONTRACTS.  367 

proper  to  carry  into  eft'ect  their  powers  and  discharge  their 
duties  is  impliedly  given  to  every  such  corporation.  But  this  im- 
plied authority  is  only  co-extensive  with  the  powers  and  duties 
of  the  corporation ;  and  if  any  greater  authority  is  claimed  it 
must  be  sought  for  in  an  express  or  special  grant  from  the  leg- 
islature. It  is  scarcely  necessary  to  observe  that  no  contract 
can  be  made  by  a  corporation  which  is  prohibited  by  its  charter 
or  by  the  statute  law  of  the  state.1  And  it  is  a  general  and  fun- 
damental principle  of  law,  that  all  persons  contracting  with  a 
municipal  corporation  must,  at  their  peril,  inquire  into  the  power 
of  the  corporation  or  its  officers  to  make  the  contract;  and  a 
contract  beyond  the  scope  of  the  corporate  power  is  void,  al- 
though it  be  under  the  seal  of  the  corporation.2     So,  also,  those 

1  Jackson  v.  Bowman,  39  Miss.  671,  1861.  Contracts  to  violate  the  charter, 
or  to  bargain  away  or  restrict  the  free  exercise  of  legislative  discretion 
vested  in  a  municipality  or  its  officers  in  reference  to  public  trusts,  are 
void :  lb. ;  Thomas  v.  Richmond,  12  Wall.  349,  1870,  in  which  notes 
issued  by  the  city  to  circulate  as  money  in  contravention  of  law  were  ad- 
judged void,  and  the  city  held  not  to  be  liable  either  in  special  or  general 
assumpsit. 

2  Marsh  v.  Fulton  County,  10  Wall.  676,  1870 ;  ante,  p.  101,  Sec.  55  ;  Leav- 
enworth v.  Rankin,  2  Kansas,  357,  1864 ;  Horn  v.  Baltimore,  30  Md.  218, 
1868  ;  Bridgeport  v.  Railroad  Company,  15  Conn.  475,  493, 1843  ;  Haynes  v. 
Covington,  13  Sm.  &  Mar.  408,  1850 ;  Taft  v.  Pittsford,  28  Vt.  (2  Wms.)  286, 
1856  ;  City  Council  v.  Plank  Road  Company,  31  Ala.  76,  1857  ;  Steam  Navi- 
gation Company  v.  Dandridge,  8  Gill  &  J.  248,  319 ;  Hodges  v.  Buffalo,  2 
Denio,  110  ;  Baltimore  v.  Eschbach,  18  Md.  276,  282,  1861 ;  Baltimore  v. 
Reynolds,  20  Md.  1 ;  Dill  v.  Inhabitants,  &c,  7  Met.  438,  1844  ;  Branham  v. 
San  Jose,  24  Cal.  585,  602 ;  Sturtevant  v.  Alton,  3  McLean,  393,  1844 ;  Wal- 
lace v.  San  Jose,  29  Cal.  180 ;  State  v.  Kirkley,  29  Md.  85,  111,  1868 ;  Bateman 
v.  Mayor,  &c.  3  Hurl.  &  Nor.  323 ;  State  v.  Haskell,  20  Iowa,  276.  Within 
the  scope  of  its  power  a  corporation  may  contract  to  do  an  act  at  any  place 
other  than  the  one  where  it  is  located :  Bank  of  Utica  v.  Smedes,  3  Cow.  662  ; 
Maddox  v.  Graham,  2  Met.  (Ky.)  56.  Or  prospective  in  its  terms :  Davenport  v. 
Hallowell,  10  Maine,  317.  As  to  coporate  seal :  Ante,  p.  172.  Where  a  public 
corporation,  transcending  its  legal  power,  assumes  to  direct  its  officers  —  for 
example,  commissioners  of  highways — to  bring  an  action  in  their  own 
names,  or  in  their  name  of  office,  against  third  persons  for  trespasses  upon 
the  highways,  and  the  action  is  accordingly  brought  and  the  officers  are 
defeated,  they  cannot  sustain  an  action  against  the  corporation  to  be  reim- 
bursed their  costs  and  expenses ;  and  the  reason  is,  that  the  action  of  a  cor- 
poration directing  such  a  suit  to  be  brought,  being  in  excess  of  its  lawful 
power,  is  void,  and  cannot  be  the  foundation  of  any  contract,  express  or 
implied :  Cornell  v.  Guilford,  1  Denio,  510. 


368  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

dealing  with  the  agent  of  a  municipal  corporation  are  likewise 
bound  to  ascertain  the  nature  and  extent  of  his  authority. 
This  is  certainly  so  in  all  cases  where  this  authority  is  special 
and  of  record,  or  conferred  by  statute.  The  fact  in  such  a 
case  that  the  agent  made  false  representations  in  relation  to 
his  authority  and  what  he  had  already  done,  will  not  aid  those 
who  trusted  to  such  representations  to  establish  a  liability  on 
the  part  of  his  corporate  principal.1 

§  373.  Mode  of  Exercising  the  Power —  Respecting  the  mode 
in  which  contracts  by  corporations  should  be  made,  it  is  im- 
portant to  observe,  that  when,  as  is  sometimes  the  case,  the 
mode  of  contracting  is  specially  and  plainly  prescribed  and  lim- 
ited, that  mode  is  exclusive,  and  must  be  pursued,  or  the  con- 
tract will  not  bind  the  corporation  ; 2    but  the  courts   have 

'  Baltimore  v.  Eschbach,  18  Md.  276,  282 ;  Baltimore  v.  Reynolds,  20  Md. 
1, 1862 ;  Delafield  v.  State  of  Illinois,  2  Hill  (N.  Y.),  159,  174 ;  26  Wend. 
192,  1841 ;  affirming,  S.  C.  8  Paige,  531,  restraining  unauthorized  sale  of 
bonds :  Hodges  v.  Buffalo,  2  Denio,  110  ;  3  Comst.  430 ;  2  Barb.  104 ;  Super- 
visors, &c.  v.  Bates,  17  N.  Y.  242,  1858.  This  case  also  determines  how  far, 
in  such  a  case,  the  sureties  of  such  an  agent  or  officer  are  liable  for  his  acts. 
And  see  cases  cited  on  p.  245 :  Chemung  Canal  Bank  v.  Supervisors,  S 
Denio,  517,  1848 ;  Overseers,  &c.  v.  Same,  15  N.  Y.  341 ;  2  Comst.  178,  per 
Strong,  J. ;  Marsh  v.  Fulton  Co.  10  Wall.  676, 1870 ;  Miner's  Ditch  Co.  v.  Zel- 
larbach,  37  Cal.  543,  1869;  Swift  v.  Williamsburg,  24  Barb.  427;  Hague  v. 
Philadelphia,  48  Pa.  St.  527 ;  State  v.  Kirkley,  29  Md.  85,  111 ;  Horn  v.  Bal- 
timore, 30  Md.  218,  1868;  Thomas  v.  Richmond,  12  Wall.  349,  1870,  per  Brad- 
ley, J. 

Special  and  limited  authority  to  burrow  money  conferred  upon  the  town 
treasurer,  when  exercised,  is  exhausted,  and  the  town  is  not  liable  for  money 
he  subsequently  borrows  and  converts  to  his  own  use,  although  he  assumed 
to  act,  and  was,  by  the  lender,  supposed  to  be  acting  under  the  authority 
conferred  upon  him :  Savings  Bank  v.  Winchester,  8  Allen,  109, 1864 ;  ante, 
p.  126. 

2  Head  v.  Insurance  Company,  2  Cranch  (IT.  S.),  127,  1804;  White  v.  New 
Orleans,  15  La.  An.  667  ;  Infra,  Sec.  388 ;  Dey  v.  Jersey  City,  19  N.  J.  Eq. 
412,  1869  ;  Baltimore  v.  Reynolds,  20  Md.  1.  Speaking  of  this  subject  in  the 
case  first  cited,  Marshall,  C.  J.,  says :  "  The  act  of  incorporation  is  to  them 
an  enabling  act ;  it  gives  them  all  the  power  they  possess ;  it  enables  them 
to  contract,  and  when  it  prescribes  to  them  a  mode  of  contracting,  they  must  ob- 
serve that  mode,  or  the  instrument  no  more  creates  a  contract  than  if  the 
body  had  never  been  incorporated."  Approved,  Bank  of  United  States  v. 
Dandridge,  12  Wheat.  64,  68, 1827  ;  see  also  Angell  &  Ames,  Corp.  Sec.  253; 
Diggle  v.  Railway  Company,  5  Exch.  442 ;  Homersham  v.  Wol.  &c.  Company, 


Cfi.  XIV.]  CONTRACTS.  36S> 

sometimes  regarded  provisions  on  this  subject  as  directory. 
Thus,  where  the  charter  directed  the  mode  in  which  moneys 
should  be  drawn  from  the  treasury  to  be  by  an  order  of  the 
cduncil,  signed  by  the  mayor,  such  an  order  issued  upon  a 
memorandum  in  the  minutes  of  the  corporation,  without  a 
formal  order  being  entered,  was  adjudged  a  sufficient  compli- 
ance with  the  charter.1  But  unless  the  mode  be  prescribed 
and  limited,  valid  contracts  within  the  scope  of  the  Corporate 
powers  may  be  made,  as  we  shall  see,  otherwise  than  under 
seal  or  in  writing. 

§  374.  Seal  Not  Necessary — How  Concluded. — 'Modern  de- 
cisions have  established  the  law  to  be,  that  the  contracts  of 
municipal  corporations  need  not  be  Under1  seal  unless  the  char- 
ter so  requires.  The  authorized  body  of  a  municipal  corpora- 
tion may  bind  it  by  an  ordinance,  which,  in  favor  of  private 
persons  interested  therein,  may,  if  so  intended,  operate  as  a 
contract;  or  they  may  bind  it  by  a  resolution,  or  by  vote  clothe 
its  officers,  agents,  or  committees,  with  power  to  act  for  it ; 
and  a  contract  made  by  persons  thus  appointed  by  the  corpo- 
ration, though  by  parol  (unless  it  be  one  which  the  law  re- 
quires to  be  in  writing)  will  bind  it.2 

4  Eng.  Law  &  Eq.  426;  Erend  v.  Dennett,  4  C.  Bi  (N.  8.)  576;  Butler*. 
Charlestown,  7  Gray  (Mass.),  12  ;  Trustees  v.  Cherry,  8  Ohio  St.  564, 1858  ; 
Bladen  v.  Philadelphia,  60  Pa.  St.  464 ;  McCracken  v.  San  Francisco,  16  Cal. 
591 ;  Piemental  v.  San  Erancisco,  21  Cal.  351 ;  2ottman  v.  San  Francisco,  20 
Cal.  90 ;  Argenti  «.  San  Francisco,  16  Cal.  255,  282,  opinion  of  Meld,  C.  J. 
Post,  chapter  on  Taxation  and  Local  Assessments.  If  a  corporation  sue 
upon  a  contract,  though  it  be  executory  on  their  part,  and  not  executed, 
this  amounts  to  a  conclusive  admission  that  the  contract  was  duly1  entered 
into  by  them :    Grant  on  Corp  63 ;  5  Man.  &  Granger,  192. 

1  Kelly  v.  Mayor,  &c.  of  Brooklyn,  4  Hill  (N.  Y.),  263, 1843;  see  Neiffer  v. 
Bank,  1  Head  (Tenn.),  162 ;  Penrose  v.  Taniere,  12  Queen's  B.  1011 ;  Mad- 
dox  v.  Graham,  2  Met.  (Ky.)  56. 

2  Fanning  v.  Gregoire,  16  How.  (U.  S.)  524, 1853 ;  Abbey  i).  Billups,  35  Miss. 
618 ;  Alton  v.  Mulledy,  21  111.  76, 1859 ;  Western,  &c.  Society  v.  Philadelphia, 
31  Pa.  St.  175;  lb.  185  ;  Clark  v.  Washington,  12  Wheat.  40, 1827;  Hamilton 
v.  Railroad  Company,  9  Ind.  359,  1857 ;  Rosfs  o.  Madison,  1  Ind.  (Cart.)  281, 
1848 ;  Story  Agency,  Sec.  52,  where  it  is  said  that,  "  as  the  appointment  of 
an  agent  of  a  corporation,  may  not  always  be  evidenced  by  written  vote,  it 
is  now  the  settled  doctrine — at  least  in  America — that  it  may  be  inferred 
and  implied  from  the  adoption  or  recognition  of  the  acts  of  the  agent  by  the 
corporation." 

47 


370  MUNICIPAL    CORPORATIONS.  [CH.  XIV. 

§  375.  The  assent  of  a  municipal  corporation  to  the  variation 
or  modification  of  a  contract  need  not  necessarily  be  expressed 
by  the  formal  action  or  resolution  of  the  common  council ;  but 
it  may  be  implied  from  acts  relating  to  the  contract  work  subse- 
quent to  the  date  of  the  contract.1 

In  Fleckner  v.  United  States  Bank,  8  Wheat.  (U.  S.)  338,  357,  1823,  it  was 
urged  that  a  corporation  could  not  authorize  any  act  to  be  done  by  an  agent 
by  a  mere  vote  of  the  directors,  but  only  by  an  appointment  under  its  cor- 
porate seal.  But  the  court  declared  that  such  a  doctrine,  whatever  may 
have  been  its  original  correctness  as  applied  to  common  law  corporations, 
had  "  no  application  to  modern  corporations  created  by  statute,  whose 
charters  contemplate  the  business  of  the  corporation  to  be  transacted  by  a 
special  body  or  board  of  directors.  And  the  acts  of  such  a  body  or  board, 
evidenced  by  a  written  vote,  are  as  completely  binding  upon  the  corpora- 
tion, and  as  complete  authority  to  their  agents,  as  the  most  solemn  acts 
done  under  the  corporate  seal : "  Per  Story,  J.  Further,  as  to  common 
seal,  see  ante,  p.  172.  Authority  of  agent,  in  absence  of  special  restriction, 
may  be  given  by  parol  or  inferred  from  acts :  Detroit  v.  Jackson,  1  Doug. 
(Mich.)  106 ;  see  ante,  p.  172. 

A  provision  in  the  organic  act  of  a  city,  that  "  on  the  passage  of  every  by- 
law or  order  to  enter  into  a  contract  by  the  council,  the  ayes  and  nays  shall 
be  called  and  recorded,"  prescribes  how  the  order  to  contract  shall  be  made 
and  evidenced  when  directed  by  the  council,  but  is  not  a  limitation  on  the 
power  of  authorized  agents  to  make  a  contract  by  parol:  Indianolaa.  Jones, 
29  Iowa,  282,  1870.    Ante,  Sec.  229. 

Contract  may  be  concluded  by  ordinance  or  action  of  the  council  (accepting 
proposals),  without  signature  by  parties :  People  v.  San  Francisco,  27  Cal. 
655,  1865 ;  Sacramento  v.  Kirk,  7  Cal.  419 ;  Logansport  v.  Blakemore,  17  Ind. 
318.  How  shown :  San  Antonio  v.  Lewis,  9  Texas,  69.  In  Indianapolis  v. 
Skeen,  17  Ind.  628, 1861,  it  was  held  that  third  persons  dealing  with  an 
agent  of  the  city  appointed  by  the  council  "to  negotiate  its  bonds  at  not  less 
than  "  a  specified  rate,  were  not  obliged  to  look  to  the  records  of  the  coun- 
cil for  either  his  appointment  or  his  instructions,  since  they  were  not 
necessarily  of  record  there ;  but  persons  dealing  with  such  an  agent  are,  of 
course,  bound  to  ascertain  the  fact  of  his  appointment  and  the  extent  of 
his  authority,  but  not  his  private  instructions.  Authority  of  agent  to  nego- 
tiate sale  of  bonds :  Cady  v.  Watertown,  18  Wis.  322. 

1  Messenger  v.  Buffalo,  21  N.  Y.  196,  1860.  Where  certain  work  is  stipu- 
lated to  be  done  under  the  direction  of  a  street  commissioner  of  a  city,  this 
officer  has  authority,  without  a  vote  of  the  council,  to  authorize  extra  work 
to  be  done,  or  materials  to  be  furnished,  where  these  are  rendered  necessa- 
ry by  the  action  of  the  city  authorities  subsequent  to  the  making  of  the 
contract,  and  where,  without  such  extra  work  or  materials,  it  would  be  im- 
possible to  fulfil  the  requirements  of  the  contract :  lb.  Modification  of 
contracts  by  unauthorized  officers  not  binding  upon  the  corporation :  Bone- 
steel  v.  Mayor,  &c.  of  New  York,  22  N.  Y.  162,  1860;  Hague  v.  Philadelphia, 
48  Pa.  St.  527.  As  to  changes  in  contracts  by  parol,  see  Hasbrouck  v.  Milwau- 
kee, 21  Wis.  217,  1866;  compare,  Sacramento  v.  Kirk,  7  Cal.  419. 


CH.  XIV.]  CONTRACTS.  371 

§  376.  Contracts  made  by  Agents  —  Mode  of  Execution. — 
Where  officers  or  agents  of  a  corporation,  duly  appointed,  and 
acting  within  the  scope  of  their  authority  in  executing  an  in- 
strument in  behalf  of  the  corporation,  sign  their  own  names 
and  affix  their  own  seals,  such  seals  are  simply  nugatory,  and 
the  instrument,  according  to  the  weight  of  modern  judicial 
opinion,  is  to  be  regarded  as  the  simple  contract  of  the  corpora- 
tion, and  will  bind  the  corporation  and  not  the  individuals  exe- 
cuting it,  where  the  purpose  to  act  for  the  corporation  is  man- 
ifest from  the  whole  paper,  and  where  there  are  no  words 
evincing  an  intention  to  assume  a  personal  liability.1 

1  Regents,  &c.  v.  Detroit,  &c.  12  Mich.  138 ;  Sweetzer  v.  Mead,  5  Mich. 
107  ;  Bank  of  Metropolis  v.  Gottschalk,  14  Pet.  19 ;  Story  Agency,  Sees.  154, 
260,  276,  277 ;  Bank  of  Columbia  v.  Patterson,  7  Cranch,  299,  307 ;  Hatch  o. 
Barr,  1  Ham.  (Ohio)  390;  Baker  v.  Chambl?s,  4  G.Greene  (Iowa),  428; 
Lyon  v.  Adamson,  7  Iowa,  501 ;  1  Am.  Lead  Cas.  602  ;  Mott  v.  Hicks,  1  Cow. 
513,  534 ;  Blanchard  v.  Blackstone,  102  Mass.  343 ;  Stanton  v.  Camp  (contract 
signed  individually,  with  addition  of  "  committee  "),  4  Barb.  274 ;  Mechan- 
ics' Bank  v.  Bank  of  Columbia,  5  Wheat.  326 ;  Hopkins  v.  Mehaffy,  11  Serg. 
&  Rawle,  126 ;  Angell  &  Ames,  Sees.  293,  295.  Where  a  town  clothes  its 
agent,  or  its  committee,  with  full  power  to  make  a  contract,  and  it  is  accor- 
dingly made,  it  is  valid  and  binding,  notwithstanding  there  has  been  no 
formal  acceptance  by  a  vote,  or  even  if  it  be  afterwards  rejected  by  the  cor- 
poration :  Davenport  v.  Hallowell,  10  Maine,  317  ;  Junkins  v.  School  Dis- 
trict, 39  Maine,  220, 1855;  Willard  v.  Newburyport,  12  Pick.  227  ;  Kingsbury 
v.  School  District,  12  Met.  99,  1846. 

The  power  of  a  committee,  appointed  by  a  vote  of  a  town,  "  to  let  out  and 
superintend  the  making''  of  a  highway,  is  completely  executed  by  the 
making  of  a  contract  with  a  third  person  embracing  the  whole  subject  mat- 
ter of  the  vote  and  by  the  superintending  of  the  construction  of  the  high- 
way. And,  therefore,  if  the  person  contracted  with  fails  to  complete  the 
road  according  to  his  contract,  this  is  a  matter  for  the  town  to  deal  with,  and 
the  committee  have  no  power,  without  new  authority  from  the  town,  to 
enter  into  a  contract  with  another  person  for  its  completion.  If  they  do  so, 
and  pay  money  in  pursuance  thereof,  the  town  is  not  liable  to  them  there- 
for. Nor  is  it  liable  if  they  transcend  their  power,  and  make  a  contract  for 
a  more  expensive  road  than  they  were  authorized  to  do :  Keyes  v.  West- 
ford,  17  Pick.  273, 1835. 

Power  to  a  town  committee  "  to  superintend  the  building  of  a  house  for  the 
town,''  was  adjudged  to  include  the  power  to  make  the  necessary  contracts, 
it  not  appearing  that  any  other  or  special  committee  or  agent  was  appointed 
for  that  purpose — the  court  being  of  opinion  that  the  making  of  contracts 
was  essential  to  the  building  of  the  house:  Damon  v.  Granby,  2  Pick.  345, 
1824.    Ante,  Chaps.  IX.  X. 


372  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

§  377.  A  few  cases  will  he  referred  to,  illustrating  the  rule 
just  stated,  A  contract  in  relation  to  the  survey  of  a  city,  a 
subject  exclusively  appertaining  to  the  corporation,  was  en- 
tered into  "  between  T,  Van  V.,  J.  W.,  C,  D.  C,  a  committee 
appointed  by  the  carpoiration  of  the  city  of  Albany  for  that 
purpose,  of  the  first  part,  and  JohnR.  Jr.,  of  the  second  part." 
The  parties  of  the  first  part  agreed  to  pay  for  the  work  to  he 
done,  and  signed  their  individual  names  and  affixed  their  indi- 
vidual seals  to  the  agreement.  The  authority  of  the  committee 
to  act  for.  the  corporation  and  to  make  the  contract  being  con- 
ceded, it  was  ruled  that  they  were  not  perso  nally  liable,  and  that 
it  must  be  enforced  by  and  against  the  corporation.1  In  an- 
other case,  a  contract  for  the  repair  of  an  engine  house  of  a 
city  was  entered  into  by  the  inspector  of  the  fire  department 
in  his  own  name,  describing  himself  as  "  G.  N.  S.,  inspector, 
&c,  of  the  first  part,"  and  signed  in  the  same  way.  It  was.  in 
fact,  made  for  and  on  account  of  the  city,  and  it  was  held  that 
the  pity  was  liabje  thereon,  although  its  agent  did  not  use  its 
name  in  contracting,  the  court  being  of  opinion,  however,  that 
the  contract  on  its  face  showed  it  was  made  for  the  city.8 

§  378.  So,  where  on  a  sale  of  real  property  by  a  corpora- 
tion, a  memorandum  of  the  sale  was  signed  by  the  parties,  on 
which  it  was  stated  that  the  sale  was  made  to  A.  B.,  the  pur- 
chaser,, and  tha;t  he,  C.  D.,  "  mayor  of  the  corporation,  on  be- 
half of  himself  and  the  pest  of  the  burgesses  and  commonalty 
of  the  borough  of  Caermarthen,  do  mutually  agree  to  perform 
and  fulfil,  on  each  of  their  parts  respectively,  the  conditions  of 
the  sale,"  and  then  came  the  signature  of  the  purchaser,  and 
of"  C.  D.,  Mayor."  It  was  held  that  the  agreement  was  that 
of  the  corporation,  and  not  (that  of  the  mayor  personally ;  and 
that,  consequently,  the  mayojp  could  not  sue  thereon.3 

1  Randall  v.  Van  Vechten,  19  Johns.  60, 1821  j  compare,  however,  Fullani 
v.  Brookneld,  9  Allen,  1, 1864,  where  the  court  denies  the  doctrine  of  Randall 
v.  Van  Vechten,  Bank,  &c.  v.  Patterson,  7  Cranch,  299,  and  certain  dicta  in 
Damon  ».  Granby,  2  Pick.  345.  But  the  text  states  the  prevailing  American 
rule.  See  also  Dubois  v.  Canal  Company,  4  Wend.  285  ;  Worrell  v.  Munn, 
1  Seld.  229 ;  Ford  v.  Williams,  3  Kern,  577,  §§5  ;  Richardspn  v.  Scott,  &c.  Co. 
22  Cal:  150; 

2  Robinson  v.  St.  Louis,  28  Mo.  488, 1859. 
*  Bowen  v.  Morris,  2  Taunt.  374,  387. 


OH.  XIV.]  CONTRACTS.  373 

§  379.  But  the  action  or  contract  of  the  officers  of  a  public 
corporation  in  their  individual  capacity,  is  not  binding  upon  the 
corporate  body.'  For  example :  If  the  selectmen  of  a  town  in 
Mew  England,  as  individuals,  request  a  citizen  to  furnish  sup- 
plies to  a  public  enemy,  to  prevent  violence  to  the  town,  this 
gives  no  legal  right  of  recovery  against  the  town ;  and  as  the 
transaction  was  wholly  beyond  the  official  duty  of  selectmen, 
or  the  duty  of  the  town  as  a  corporation,  it  was  doubted 
whether  a  regular  vote  to  pay  the  plaintiff  would  have  been 
legal,  though  it  was  admitted  that  a  voluntary  agreement 
among  the  inhabitants  to  this  effect  would  have  been  binding, 
being  founded  on  a  meritorious  consideration,  as  it  was  their 
property,  and  not  that  of  the  town,  which  was  in  danger.2 

§  880.  "While  the  agent  of  a  public  corporation,  who  by 
its  vote  or  authority  contracts  for  its  use,  cannot  bind  the 
corporation  by  making  a  contract  by  deed :  yet  if  such  agent 
had  authority  to  make  the  contract,  it  is  binding  upon  the  cor- 
poration as  evidence  of  such  contract.  It  follows  that  a  contract 
of  an  agent  or  committee  of  a  town,  under  his  or  their  own 
seals,  cannot  be  declared  on,  in  covenant  or  debt,  as  the  deed  of 
the  town.     The  form  of  the  remedy  against  the  town3  is  for 

1  Haliburton  v.  Frankford,  14  Mass.  214,  1817 ;  Butler  v.  Charlestown,  7 
Gray,  12,  1856. 

2  Haliburton  «.  Frankford,  supra;  Stetson  u.Kempton,  13  Mass.  272,  1816. 
A  majority  of  selectmen  may,  by  statute,  bind  a  town  in  New  Hampshire 
by  their  written  contract  when  acting  within  the  limits  of  their  authority. 
But  a  contract  signed  by  one  only  of  the  selectmen  in  his  own  name,  "for  the 
selectmen,"  does  not  bind  the  town,  nor  will  it  be  rendered  valid  by  proof 
that  another  selectman  authorized  him  so  to  sign  the  contract,  or  by  proof 
that  such  was  the  practice  in  the  town.  If  the  corporate  name  had  been  af- 
fixed by  one,  such  proof  might  have  been  sufficient :  Andover  v.  Grafton, 
7  N.  H.  298,  305 ;  Mason  v.  Bristol,  10  N.  H.  36 ;  Hanover  v.  Eaton,  3  N.  H. 
38.    Powers  of  towns  in  New  England:  Ante,  p.  39. 

Contracts  made  by  a  majority  of  the  board  of  aldermen,  without  any  offi- 
cial action  of  the  city  council,  are  not  binding  upon  the  eity  ;  so  decided 
where  qounsel  were  thus  employed  who  rendered  legal  services  beneficial 
to  the  corporation :  Butler  v.  Charlestown,  7  Gray,  12,  1856  ;  see  also  Sikes 
v.  Hatfield,  13  Gray,' 347, 1859.    See  chapter  on  Corporate  Meetings,  ante. 

s  Eandall  v.  Van  Vechten,  19  Johns.  60,  65,  1821 ;  Damon  v.  Granby,  2 
Pick.  345,  1824 ;  compare,  Fullam  v.  Brookfield,  9  Allen,  1 ;  Bank  of  Colum- 
bia v.  Patterson's' Administrator,  7  Cranch,  229,  and  rule  as  stated  by  Story, 
J.,  306, 1813 ;  Clark  v.  Cuckfield  Union,  11  Eng.  Law  &Eq.  442 ;  Pennington. 
v.  Taniere,  12  Queen's  B.  1011.    Ante,  p.  173,  Sec.  132. 


374  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

damages,  or  in  assumpsit.  Although  in  Damon  v.  G-ranby 1  it 
was  left  an  open  question,  whether  a  vote  of  a  town  having  no 
corporate  seal,  expressly  authorizing  an  agent  to  make  a  deed  of 
land,  or  other  contract,  under  seal,  would,  if  executed  according 
to  the  power,  become  technically  the  deed  of  the  town,  no  sub- 
stantial reason  is  perceived  why  such  an  instrument,  thus 
executed,  should  not  be  treated  as  having  all  the  attributes  and 
qualities  of  a  sealed  instrument.  If  the  corporation,  however, 
has  a  common  seal,  which  is  the  case  with  towns  in  many  of 
the  states,  and  with  cities  generally,  and  it  is  affixed  to  an  in- 
strument in  pursuance  of  a  vote  of  the  corporation,  or  by  the 
proper  officer,  such  an  instrument  is,  beyond  doubt,  technical- 
ly the  deed  of  the  corporation.2 

§  381.  Contracts  in  Excess  of  G>rpora.te  Power. —  Ultra  Vires 
as  a  Defence. —  The  general  principle  of  law  is  settled,  beyond 
controversy,  that  the  agents,  officers,  or  even  city  council,  of  a 
municipal  corporation,  cannot  bind  the  coporation  by  any  contract 
which  is  beyond  the  scope  of  its  powers,  or  entirely  foreign 
to  the  purposes  of  the  corporation,  or  which  (not  being  in 
terms  authorized)  is  against  public  policy.  This  doctrine 
grows  out  of  the  nature  of  such  institutions,  and  rests  upon 
reasonable  and  solid  grounds.  The  inhabitants  are  the  cor- 
porators— the  officers  are  but  the  public  agents  of  the  corpora- 
tion. Their  duties  and  powers  are  prescribed  by  statute  or 
charter,  which  all  persons  not  only  may  know,  but  are  bound 
to  know.  The  opposite  doctrine  would  be  fraught  with  such 
danger,  and  accompanied  with  such  abuse,  that  it  would  soon 
end  in  the  ruin  of  municipalities,  or  be  legislatively  over- 
thrown. These  considerations  vindicate  both  the  reasonable- 
ness and  necessity  of  the  rule  that  the  corporation  is  bound 
only  when  its  agents  or  officers,  by  whom  it  can  alone  act,  if  it 
acts  at  all,  keep  within  the  limits  of  the  chartered  authority  of 
the  corporation.  The  history  of  the  workings  of  municipal 
bodies  has  demonstrated  the  salutary  nature  of  this  principle, 
and  that  it  is  the  part  of  true  wisdom  to  keep  the  corporate  wings 

1  Damon  v.  Granby,  2  Pick.  345,  352, 1824. 

2  lb.    Eandall  v.  Van  Vechten,  19  Johns.  60,  65, 1821.    But  see  Fullam  v. 
Brookfleld,  9  Allen,  1. 


CH.  XIV.]  CONTRACTS.  375 

clipped  down  to  the  lawful  standard.1  It  results  from  this 
doctrine  that  unauthorized  contracts  are  void,  and  in  actions 
thereon  the  corporation  may  successfully  interpose  the  plea  of 
ultra  vires,  setting  up  as  a  defence  its  own  want  of  power  under 
its  charter  or  constituent  statute  to  enter  into  the  contract.2 

1  This  subject  is  touched  upon  in  the  concluding  portion  of  Chap.  I.  ante. 

2  Post,  Chap.  XXIII.,  and  see  also  the  following  cases:  Marsh  v.  Fulton 
County,  10  Wall.  676,  1870;  Thomas  v.  Richmond,  12  Wall.  349,  1870; 
Bridgeport  v.  Housatonic  Railroad  Company,  15  Conn.  475,  493,  1843; 
Martin  v.  Mayor,  &c.  1  Hill  (N.  Y.),  545,  1841;  Overseers,  &c.  v.  Same, 
18  Johns.  382;  Donovan  v.  New  York,  33  N.  Y.  291;  Siebrecht  v.  New 
Orleans,  12  La.  An.  496,  1857;  Clark  v.  Des  Moines,  19  Iowa,  199,  209, 
1865;    Loker  v.  Brookline,  13  Pick.  343,  348;    Philadelphia  v.  Flanigan, 

47  Pa.  St.  21;  Trustees  v.  Cherry,  8  Ohio  St.  564;  Hague  v.  Philadelphia, 

48  Pa.  St.  527;  Albany  v.  Cunliff,  2  Comst.  (N.  Y.)  165,  1849,  reversing 
S.  C  2  Barb.  190;  Cuyler  v.  Rochester,  12  Wend.  165,  1834;  Hodges 
v.  Buffalo,  2  Denio,  110,  1846;  Halstead  v.  Mayor,  3  Comst.  430,  1850; 
Martin  v.  Mayor,  1  Hill,  545;  Boone  v.  Utica,  2  Barb.  104;  Cornell  v.  Guil- 
ford, 1  Denio,  510;  Boyland  v.  Mayor,  &c.  of  New  York,  1  Sandf.  (N.  Y.)  27, 
1847;  Dill  v.  Wareham,  7  Mete.  438,  1844;  Vincents  Nantucket,  12  Cush. 
103,  105,  1858,  per  Merrick,  J.;  Stetson  v.  Kempton,  13  Mass.  272;  Parsons  v. 
Inhabitants  of  Goshen,  11  Pick.  396;  Wood  v.  Lynn,  1  Allen  (Mass.),  108, 
1861 ;  Spalding  v.  Lowell,  23  Pick.  71 ;  Mitchell  v.  Rockland,  45  Maine,  496, 
1858;  S.  C.  41  ib.  363;  Anthony  ».  Cleveland,  12  Ohio,  375,  1861;  Commis- 
sioners v.  Cox,  6  Ind.  403,  1855;  Inhabitants  v.  Weir,  9  ib.  224,  1857;  Smead 
v.  Railroad  Company,  11  ib.  104,  1858;  Brady  v.  Mayor,  20  N.  Y.  (6  Smith) 
312;  Appleby  v.  The  Mayor,  &c.  15  How.  Pr.  428;  Estep  •/;.  Keokuk  County, 
18  Iowa,  199,  and  cases  cited  by  Cole,  J.;  Clark  v.  Polk  Count3r,  19  Iowa,  248, 
1865. 

Corporation  may  defend  against  unauthorized  contract,  although  its  seal 
is  attached  to  it :  Leavenworth  v.  Rankin,  2  Kansas,  358, 1864'.    Ante,  p.  172. 

Mr.  Justice  Coulter,  in  delivering  the  opinion  in  Allegheny  City  v.  Mc- 
Clurkan,  14  Pa.  St.  81,  expresses  the  opinion  that  a  municipal  corporation 
may  be  liable  for  the  unauthorized  contracts  of  its  officers,  when  these  are 
publicly  entered  into  with  the  knowledge  of  the  people,  and  not  objected 
to  until  after  the  rights  of  third  persons  have  attached.  Such  a  principle  is 
believed  to  be  both  unsafe  and  unsound ;  the  only  true  and  safe  view  being 
that  all  persons  are  bound  to  take  notice  of  the  powers  and  authority  which 
the  law  confers  upon  the  officers  of  such  corporations:  See  Loker  v.  Brook- 
line,  13  Pick.  343.  Auditing  and  paying  part  of  a  claim  presented,  accom- 
panied with  a  denial  of  liability  for  the  residue,  does  not  estop  the  debtor 
corporation  from  contesting  the  residue,  even  though  it  be  upon  grounds 
which  show  the  former  allowance  to  have  been  improper:  People  v. 
Supervisors,  1  Hill  (N.  Y.),  362,  1841.  In  an  action  on  a  contract  for 
doing  work  which  a  municipal  corporation  had  the  power  to  make,  it  is  no 
defence  that  the  city  ought  to  have  adopted  some  less  expensive  means  of 
(accomplishing  the  purpose  in  view:  Livingston  v.  Pippin,  31  Ala.  542,  1858. 


376  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

In  favor  of  bona  fide  holders  of  negotiable  securities*  the  corpora- 
tion may  be  estopped  to  avail  itself  of  irregularities  in  the 
exercise  of  power  conferred;  but  it  may  always  show  that 
under  no  circumstances  could  the  corporation  lawfully  make  » 
contract  of  the  character  in  question.  This  subject  has,  how- 
ever, been  already  referred  to,  and  will  be  considered  in  a  sub- 
sequent portion  of  the  present  chapter.1 

§  382.  Agreeably  to  the  foregoing  principles,  a  corporation 
cannot  maintain  an  action  on  a  bond  or  a  contract  which  is  in- 
valid, as  where  a  city,  without  authority,  loaned  its  bonds  to  a 
private  company,  and  took  from  it  a  penal  bond,  conditioned 
for  the  faithful  application  of  the  city  bonds  to  works  which 
the  city  had  no  power  to  construct  or  assist  in  constructing.2 
So  a  contract  by  a  city  to  waive  its  right  to  go  on  with  the  lay- 
ing out  of  a  street  or  not,  as  it  might  choose,  is,  it  seems,  against 
public  ■policy,  and  it  is  void  if  it  amounts  to  a  surrender  of  its 
legislative  discretion.3  So  a  promise  to  pay  a  public  corpora- 
tion, or  their  agents,  a  premium  for  doing  their  duty,  is  illegal 
and  void;  and  a  contract  will  not  be  sustained  which  tends  t& 
restrain  or  control  the  unbiased  judgment  of  public  officers. 
But  a  promise  by  individuals  to  pay  a  portion  of  the  expenses 
of  public  improvements  does  not  necessarily  fall  within  this 
principle,  and  such  a  promise  is  not  void  as  being  against  pub- 

The  case  of  The  State  v.  Buffalo,  2  Hill  (N.  Y.),  434,  determines  an  interest- 
ing point.  Arms  belonging  to  the  •  ■*  ite  were  loaned  to  the  city  authorities 
to  suppress  disorderly  assemblage,-.  The  keeper  of  the  arsenal  had  no 
right  to  make  the  loan,  but  it  was  made  in  good  faith,  and  the  bond  of  the 
city  taken  for  their  return  on  demand.  The  city  being  sued  on  this  bond, 
made  the  point  that  it  was  void  for  illegality,  but  the  court  regarded  it 
rather  as  a  bona  fide  excess  of  authority  simply,  and  held  that  though  the 
loan  was  unauthorized  the  state  might  waive  the  tort  committed  on  the 
property  and  seek  a  remedy  upon  the  bond. 

1  Ante,  p.  149,  Sec.  108;  infra,  Sees.  415-426. 

'  City  Council  v.  Plank  Road  Company,  31  Ala.  76,  1857.  See  Mayor,  &c. 
v.  Winter,  29  ib.  651 ;  Halstead  v.  Mayor.  &c.  3  Comst.  430 ;  S.  C.  5  Barb.  218 ; 
Bridgeport  v.  Housatonic  Railroad  Company,  15  Conn.  475,  493. 

'  Martin  v.  Mayor,  &c.  1  Hill  (N.  Y.),  545,  1841 ;  ante,  Chap.  V.  Ab  to  pub- 
lic policy,  see  Ohio,  &c.  Company  v.  Merchants,  &c.  Company,  11  Humph. 
(Tenn.)  1 ;  ante,  Chap.  XII.  Corrupt  agreements  with  aldermen,  to  influ- 
ence them  to  a  particular  course  in  the  discharge  of  official  duties,  are,  of 
course,  void,  no  matter  to  whom  executed  :  Cook  v.  Shipman,  24  111.  614. 


CH.  XIV.]  CONTRACTS.  377 

lie  policy;  and  if  the  promissors  have  a  peculiar  and  local  in- 
terest in  the  improvement,  their  promise  is  not  void  for  want 
of  consideration,  and  may  be  enforced  against  them.1  So,  on 
the  other  hand,  a  party  making  with  a  city  a  contract  which  is 
ultra  vires,  is  not  estopped,  when  sued  thereon  by  the  corporation 
for  damages,  to  set  up  its  want  of  authority  to  make  it.2 

§  383.  Implied  Contracts. — The  present  state  of  the  authori- 
ties clearly  justifies  the  opinion  of  Chancellor  Kent,  that  corpora- 
tions may  be  bound,  by  implied  contracts  within  the  scope  of 
their  powers,  to  be  deduced  by  inference  from  authorized  cor- 
porate acts,  without  either  a  vote,  or  deed,  or  writing.3     This 

1  Townsend  v.  Hoyle,  20  Conn.  1, 1849.  This  case  holds  that  a  promise 
by  the  defendants  to  pay  the  city  the  expense  "of  laying  a  certain  street  was 
binding;  and  Ellsworth,  J.,  in  delivering  the  opinion,  said:  "We  cannot 
assent  to  the  proposition  that  a  promise  by  individuals  to  pay  a  part  of  the 
expenses  of  public  improvements,  ordered  by  public  authority,  is,  of  course, 
illegal  and  void.  The  amount  or  cost  may  properly  enough  enter  into  the 
question  of  expediency  or  necessity.  If  made  in  one  way  or  in  one  place, 
it  will  be  much  better  for  the  public,  though  more  expensive ;  but  individ- 
uals especially  benefited  stand  ready,  by  giving  their  land,  their  money,  or 
their  labor,  to  meet  the  extra  expense.  Will  these  promises  be  void,  as 
being  without  consideration,  or  against  public  policy?  We  think  not." 
See  Chapter  on  Streets,  post. 

''  City  Council  v.  Plank  Road  Company,  31  Ala.  76,  1857 ;  Steam  Naviga- 
tion Company  v.  Dandridge,  8  Gill.  &  J.  248, 319, 320 ;  Hodges  v.  Buffalo,  2 
Denio,  110.  If  a  corporation  has  received  money  in  advance,  on  a  contract 
void  on  account  of  want  of  authority  to  make  it,  and  afterwards  refuses  to 
fulfil  the  contract,  the  party  advancing  the  money  may,  without  demand, 
recover  it  back  in  an  action  for  money  had  and  received :  Dill  v.  Wareham, 
7  Met.  438,  1844.  In  this  case  the  corporate  defendant  undertook,  without 
authority,  to  transfer  to  the  plaintiff  the  right  of  taking  oysters  within  its 
limits  ;  contract  held  wholly  void.  See,  also,  McCracken  v.  San  Francisco* 
16  Cal.  591.  Infra,,  Sees.  383,  384.  Compare  Herzo  v.  San  Francisco,  33  Cal. 
134.  That  the  contract  of  agents  within  the  scope  of  corporate  power  may 
be  ratified,  or  a  contract  implied  from  the  enjoyment  of  the  benefit  of  the 
consideration :  San  Francisco  Gas  Company  v.  San  Francisco,  9  Cal.  453, 
1858,  opinion  of  Field,  J:;  Backman  v.  Charlestown,  42  N.  H.  125.  See  Bis- 
sell  «.  Railroad  Company,  22  N.'Y.  258. 

3  2  Kent  Com.  291;  Bank  of  Columbia  v.  Patterson,  7  Cranch,  299  (1813— 
a  leading  American  case) ;  Mctt  v.  Hicks,  1  Cow.  513 ;  Dunn  v.  Rector,  &c, 
14  Johns.  118;  Bank  v.  Dandridge,  12  Wheat.  74;  Perkins  v.  Insurance  Com- 
pany, 4  Cow.  645 ;  Davenport  v.  Peoria  Insurance  Company,  17  Iowa,  276, 
and  cases  cited  by  Cole,  J. ;  American  Insurance  Company  v.  Oakley,  9 
Paige,  496 ;  Magill  v.  Kauffman,  4  Serg.  &  Raw.  317 ;  Randall  v.  Van  Vech- 
48 


57.8  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

doctrine  is  applicable  equally  to  public  and  private  corpora- 
tions, but  in  applying  it,  however,  care  must  be  taken  not  to 
violate  other  principles  of  law.1  Thus  it  is  obvious  that  an 
implied  promise  cannot  be  raised  against  a  corporation,  where 
by  its  charter  it  can  only  contract  in  a  prescribed  way,  except 
it  be  a  promise  for  money  received,  or  property  appropriated 
under  the  contract.2  So  where  the  corporation  orders  local 
street  improvements  to  be  made,  for  which  the  abutters  are 
the  parties  ultimately  liable,  and  which,  by  the  charter,  must 
be  made  in  a  prescribed  mode ;  if  made  without  any  contract, 

ton,  19  Johns.  60 .  Wayne  County  v.  Detroit,  17  Mich.  390 ;  Lesley  v.  White, 
1  Spears  (S.  Car.)  Law,  31 ;  Canaan  v.  Derush,  47  N.  H.,  211 ;  Lebanon  v. 
Heath,  lb.  353 ;  Adams  v.  Farnsworth,  15  Gray,  423 ;  Shrewsbury  v.  Brown, 
25  Vt.  197 ;  Gassett  v.  Andover,  lb.  342 ;  Peterson  v.  Mayor,  &c.  of  New 
York,  17  N.  Y.  449,  453, 1858  ;  Danforth  v.  Schoharie  Turnpike  Company, 
12  Johns.  227;  Angell  &  Ames,  Sec.  237;  Maher  v.> Chicago,  38  111.  266; 
Frankfort  Bridge  Company  v.  Frankfort,  18  Ben.  Mon.  41. 

1  Peterson  v.  Mayor,  &c.  of  New  York,  17  N.  Y,  449,  453 ;  Poultney,  v. 
Wells,  1  Aiken  (Vt.),  180 ;  Where  a  city  contracted  with  a  railroad  company 
to  do  certain  work,  and  the  company  employed  persons  to  do  it,  there  is  no 
implied  contract  on  the  part  of  the  city  to  pay  them,  although  the  city  saw 
them  at  work  :    Alton  v.  Mulledy,  21  111.  76,  1859. 

Must  be  an  authorized  request :  "  No  person  can  make  himself  a  creditor  of 
another  by  voluntarily  discharging  a  duty  which  belongs  to  that  other." 
Strong,  J.,  in  Salsbury  v.  Philadelphia,  44  Pa.  St.  303 ;  Baltimore  «.  Poultney, 
25  Md.  18.  In  Seibrecht  v.  New  Orleans,  12  La.  An.  496,  1857,  carpets 
were  furnished  for  certain  corporation  courts,  by  order  of  the  clerks  or 
judges,  but  without  any  authority  of  the  common  council,  and  it  was  worn 
out  before  the  plaintiff  presented  his  bill.  It  was  contended  that  the  city 
was  liable  ex  equo  et  bono,  having  used,  and  not  returned,  the  carpets ;  but 
it  did  not  appear  that  the  council  knew  that  they  had  been  purchased  for 
the  city,  and  were  being  used  in  its  buildings.  The  court  denied  the  lia- 
bility, saying  that  "The  only  safe  rule  is  to  hold  that  the  city  cannot  be 
bound  for  any  contract  made  without  its  authorization,  expressed  by  a  reso- 
lution of  the  common  council."  That  an  unauthorized  contract,  however 
advantageous,  does  not  bind  the  corporation,  see  Loker  v.  Brookline,  13 
Pick.  343  ;  Jones  v.  Lancaster,  4  Pick.  149  ;  Wood  v.  Waterville,  5  Mass.  294. 

A  contract  was  implied  on  the  part  of  a  city,  which  was  bound  to  support 
its  .paupers  and  which  had  refused,  to  pay  a  person  who  had  furnished  a 
pauper  with  necessaries :  Seagraves  v.  Alton,  13  111.  371.  Here  it  will  be 
noticed  that  there  was  an  express  refusal  on  the  part  of  the  city  to  support 
the  pauper,  and  yet  a  promise  was  implied.  This  implication  is  a  pure 
fiction  to  support  what  the  court  regarded  as  a  just  claim. 

*  McSpedon  v.  Mayor  of  New  York,  7  Bosw.  601 ;  McCracken  v.  San 
Francisco,  16  Cal.  591 ;  Piemental  ».  San  Francisco,  21  Cal.  351. 


\   \ 


CH.  XIV.]  CONTRACTS.  379 

or  a  valid  one,  the  doctrine  of  implied  liability  does  not  apply 
in  favor  of  the  contractor,  unless,  indeed,  the  corporation  has 
collected  the  amount  from  the  adjoining  owners  and  has  it  in 
its  treasury.1 

§  384.  "  The  doctrine  of  implied  municipal  liability,"  says  Mr. 
Chief  Justice  Field,  in  a  case  where  the  subject  underwent 
very  thorough  examination,  "  applies  to  cases  where  money  or 
other  property  of  a  party  is  received  under  such  circumstances 
that  the  general  law,  independent  of  express  contract,  imposes 
the  obligation  upon  the  city  to  do  justice  with  respect  to  the 
same.  If  the  city  obtain  money  of  another  by  mistake,  or 
without  authority  of  law,  it  is  her  duty  to  refund  it — not  from 
any  contract  entered  into  by  her  on  the  subject,  but  from  the 
general  obligation  to  do  justice,  which  binds  all  persons, 
whether  natural  or  artificial.  If  the  city  obtain  other  property 
which  does  not  belong  to  her,  it  is  her  duty  to  restore  it ;  or  if 
used  by  her,  to  render  an  equivalent  to  the  true  owner,  from 
the  like  general  obligation  :  the  law,  which  always  intends  jus- 
tice, implies  a  promise.  In  reference  to  money  or  other  property, 
it  is  not  difficult  to  determine  in  any  particular  case,  whether  a 
liability  with  respect  to  the  same  has  attached  to  the  city.  The 
money  must  have  gone  into  her  treasury,  or  been  appropriated 
by  her,  and  when  it  is  property  other  than  money,  it  must  have 
been  used  by  her,  or  be  under  her  control.  But  with  reference 
to  services  rendered,  the  case  is  different.  Their  acceptance  must 
be  evidenced  by  ordinance  [or  express  corporate  action]  to  that' 
effect.  If  not  originally  authorized,  no  liability  can  attach  upon 
any  ground  of  implied  contract.  The  acceptance  upon  which 
alone  the  obligation  to  pay  «ould  arise,  would  be  wanting.  As 
a  general  rule,  undoubtedly,  a  city  corporation  is  only  liable 
upon  express  contracts,  authorized  by  ordinance  [or  other  due 
corporate  proceedings].  The  exceptions  relate  to  liabilities 
from  the  use  of  money  or  other  property  which  does  not  belong 
to  her,  or  to  liabilities  springing  from  the  neglect  of  duties  im- 

1  Argenti  v.  San  Francisco,  16  Cal.  255  —  opinion  of  Fidd,  C.  J.  A  munici- 
pal corporation  was  holden  liable,  under  its  charter,  upon  an  implied  as- 
sumpsit to  collect  and  pay  over  assessments  awarded  to  property  owners, 
for  the  opening  of  a  street :  Wheeler  v.  Chicago,  24  111.  105, 1860 ;  see  infra 
Sees.  388, 400,  403. 


380  MUNICIPAL   CORPOKATIONS.  [CH.  XIV. 

posed  by  the  charter,  from  which  injuries  to  parties  are  pro- 
duced. There  are  limitations  even  to  these  exceptions,  in 
many  instances,  as  where  property  or  money  is  received  in 
disregard  of  positive  prohibitions ;  as,  for  example,  the  city 
would  not  be  liable  for  moneys  received  upon  the  issuance  of 
bills  of  credit,  as  this  would  be,  in  effect,  to  support  a  proceed- 
ing in  direct  contravention  of  the  inhibition  of  the  charter."1 
Nor  for  money  received  for  notes  issued  by  it  to  circulate  as 
money,  in  violation  of  an  express  statute  and  the  public  policy 
of  the  state.2 

§  385.  notification  of  Unauthorized  Contract. — A  municipal 
corporation  may  ratify  the  unauthorized  acts  and  contracts  of 
its  agents  or  officers,  which  are  within  the  corporate  powers,  but 
not  otherwise.  Ratification  may  be  inferred  from  acquiescence 
after  knowledge  of  all  the  material  facts,  or  from  acts  incon- 
sistent with  any  other  supposition.  The  same  principle  is  ap- 
plicable to  corporations,  as  to  individuals.3     The  employment, 

1  Per  Field,  C.  J.,  in  Argenti  v.  San  Francisco,  16  Cal.  255,  282,  1860. 

2  Thomas  v.  Richmond,  12  Wall.  349, 1870.  The  principles  upon  which 
the  decision  rests  are  admirably  stated  in  the  opinion  of  Mr.  Justice  Brad- 
ley. 

Illustrations  of  implied  liability. —  City  is  liable  for  gas  furnished  to  it  with 
knowledge  of  the  council,  though  no  ordinance  or  resolution  was  passed 
authorizing  it  to  be  furnished :  Gas  Company  v.  San  Francisco,  9  Cal.  453, 
466,  1858 — opinion  of  Meld,  3.  If  a  city  sells  its  void  bonds,  there  is  an  im^ 
plied  assumpsit  to  repay  the  purchase-money :  Paul  v.  Kenosha,  22  Wis. 
266, 1867.  Where  a  bridge  corporation  was  requested  by  the  city  authori- 
ties to  communicate  to  them  the  terms  upon  which  the  city  might  attach 
its  water  pipes  to  the  bridge,  to  carry  the  water  from  one  side  of  the  river 
to  the  other,  which  the  bridge  company  answered,  fixing  a  sum,  upon  which 
the  city  council  took  no  action,  but  proceeded  to  extend  the  water  works, 
and  used  the  bridge,  the  court  held  that  the  city  was  liable :  Bridge  Com- 
pany v.  Frankfort,  18  Ben.  Mon.  41, 1857. 

s  People  v.  Swift,  31  Cal.  26,  1866;  Bleu  v.  Bear  River  Company,  20  Cal. 
602,  1862;  Peterson  v.  Mayor,  17  N.  Y.  449,  453,  1858,  and  authorities  cited, 
reversing  S.  C.  4  E.  D.  Smith,  413 ;  San  Francisco  Gas  Company  v.  San  Fran- 
cisco, 9  Cal.  453;  Hoyt  v.  Thompson,  19  N.  Y.  207,  2*8,  1859;  Howe*.  Keeler, 
27  Conn.  538;  Emerson  ».  Newberry,  13  Pick.  377;  Hodges  v.  Buffalo,  2 
Denio,  110, 1846;  5  ib.  567;  People  v.  Flagg,  17  N.  Y.  584;  S.  C.  16  How.  Pr. 
R.  36;  Brady  v.  Mayor,  &c.  of  New  York,  20  N.  Y.  312,  affirming  S.  O.  2. 
Bosw.  173;  Delafield  v.  State  of  Illinois,  2  Hill  (N.  Y.),  159,  176,  1841 ;  S.  C. 
8  Paige,  531,  and  26  Wend.  192;  Mills  v.  Gleason,  8  Am.  Law  Reg.  693;  S. 


CH.  XIV.  J  CONTRACTS.  381 

however,  by  a  municipal  council  of  an  attorney  to  defend  a 
policeman  charged  with  an  assault,  does  not  adopt  his  act  so 
as  to  render  the,  city  liable  for  the  damages  recovered  against 
him.1 

§  386.  Where  work  done  for  a  corporation,  without  com- 
plete legal  authorization,  is  beneficial  to  it,  and  the  price  rea- 
sonable, strong  evidence  of  the  assent  of  the  corporation  is  not 
required;  but  such  assent  must  be  shown.  Ratification  of  the  acts 
of  a  committee  in  building  upon  the  land  of  the  district  a  more 
expensive  house  than  they  were  authorized  to  do  by  the  vote 
of  the  corporation,  cannot  be  inferred  from  the  mere  fact  that 
the  school  is  kept  in  it  for  a  few  weeks,  there  being  no  evi- 
dence that  the  corporation  had  knowledge  of  the  over  expendi- 
ture, or  had  taken  any  action  on  the  subject.2 

C.  11  Wis.  470, 1860;  Dubuque,  &c.  College  v.  Township,  &c.  13  Iowa,  555; 
Merrick  v.  Plank  Road  Company,  11  Iowa,  74,  per  Wright,  J.;  Detroit  v. 
Jackson,  1  Doug.  (Mich.)  106;  Crawshaw  v.  Roxbury,  7  Gray,  374. 

A  municipal  corporation  may  ratify  unauthorized  expenditures,  not 
ultra  vires,  which  they  deem  beneficial  to  it,  and  such  ratification  as  in 
the  case  of  natural  persons  is  equivalent  to  previous  authority :  Backman  v. 
Charlestown,  42  N.  H.  125;  Harris  v.  School  District,  8  Fost.  (N.  H.)  65; 
Wilson  v.  School  District,  32  N.  H.  118;  Keyser  v.  School  District,  35  N.  H 
477;  Episcopal  Society  v.  Episcopal  Church,  1  Pick.  372;  Bank  v.  Patterson, 
7Cranch,  299;  Randalls  VanVechten,  19  Johns.  60;  Trott  v.  Warren,  2 
Fairf.  (Maine)  227;  Topsham  v.  Rogers,  42  Vt.  189;  People  v.  Swift,  31  Cal. 
26.  In  De  Grave  v.  Monmouth,  19  Eng.  C.  L.  300,  it  was  held  that  the  ex- 
amination of  weights  and  measures,  which  had  been  ordered  by  a  mayor 
de  facto,  and  which  were  the  subject  of  the  controverted  contract,  at  a  meet- 
ing of  the  corporation,  and  the  subsequent  use  of  some  of  them,  recognized 
the  contract  for  their  purchase  and  made  the  corporation  liable  to  pay  for 
them.    Infra,  Sec.  387. 

1  Buttrick  v.  Lowell,  1  Allen  (Mass.),  172, 1861. 

5  Wilson  v.  School  District,  32  N.  H.  118, 1855.  See,  further,  as  to  effect 
of  use  as  a  ratification:  Kingman  v.  School  District,  2  Cush.  425;  Davis  v. 
School  District,  24  Maine,  349 ;  Lane  v.  School  District,  10  Met.  463 ;  Chaplin 
v.  Hill,  24  Vt.  (1  Dean)  528;  Fisher  *.  School  District,  4  Cush.  294;  Taft  v. 
Montague,  14  Mass.  285 ;  Keyser  v.  School  District,  35  N.  H.  477 ;  Pratt  v. 
Swanton,  15  Vt.  147  (use  of  bridge  by  public). 

In  Wilson  v.  School  District,  above  cited,  Mr.  Justice  Bell  well  remarks: 
"In  most  cases  where  work  and  labor  is  performed  upon  real  estate  by  con- 
tract, the  mere  fact  that  the  owner  makes  use  of  the  building  or  structure  built 
upon  his  land,  furnishes  no  evidence  of  approval  or  acceptance,  because  he 
has  no  choice  to  reject  it.    Alone,  the  use  of  such  buildings  gives  no  evi- 


382  MUNICIPAL    CORPORATIONS.  [CH.  XIV. 

§  387.  The  ratification,  whatever  its  form,  must  be  by  the 
principal  or  by  authorized  agents.  This  is  well  illustrated  by  a  case 
where,  by  statute,  certain  agents  or  officers  of  a  State  were 
authorized  to  borrow  money  for  public  use,  and  for  that  pur- 
pose to  sell  its  bonds  at  not  less  than  their  par  value.  They 
exceeded  their  power  by  selling  for  less  than  par,  and  on  credit. 
It  was  contended  that  this  contract  was  ratified,  because  the 
governor,  after  he  knew  of  the  contract,  signed  the  bonds  and 
caused  them  to  be  delivered,  and  because  the  auditor  and  some 
of  the  other  state  officers  acted  under  the  contracts,  drawing 

dence  of  acceptance.  Accompanied  by  silence,  and  absence  of  complaint, 
where  to  complain  would  be  natural  and  suitable,  or  by  any  circumstance 
indicating  acquiescence,  it  would  be  sufficient : "  32  N.  H.  125.  As  to  effect 
of  acceptance  of  public  work  by  the  agents  of  the  town,  see  Wadleigh  v.  Sut- 
ton, 6  N.  H.  15,  1832.  Of  school  house  built  upon  a  quantum  meruit  employ- 
ment by  a  committee,  but  without  a  legal  contract :  Kimball  v.  School  District, 
28  Vt.  8,  1855.  See,  also,  Corwin  v.  Wallace,  17  Iowa,  334;  Zottman  v.  San 
Francisco,  20  Cal.  96  (valuable  discussion) ;  Jordan  v.  School  District,  38 
Maine,  164,  1854.  Surveyor  of  highways  cannot  recover  of  the  town  for 
work  voluntarily  performed,  there  being  no  contract,  not  even  if  beneficial: 
Sikes  v.  Hatfield,  13  Gray,  347, 1859.    Infra,  Sees.  388,  400. 

A  public  corporation  is  not  liable  for  work  done  against,  or  even  without, 
its  direction  and  authority  (such  as  building  a  bridge,  road,  school  house, 
&c),  although  these  are  afterwards  used  by  the  public  or  the  district: 
Loker  v.  Broqkl^ne,  13  Pick.  343,  1832;  Knowlton  v.  Inhabitants,  &c.  14 
Maine  (2  Shep.),  25,  where  note  critique  on,  and  remarks  of  C.  J.  MeUen,  as 
to  Hayden  v.  Madison,  7  Greenl.  7.);  ..t  i-rell®.  Dixfield,  30  Maine  (17  Shep.), 
157,  160;  Davis  v.  School  District,  24  jlaine  (11  Shep.),  349;  Hayward  v. 
School  District,  2  Cush.  419,  1848;  ib.  426;  Moor  v.  Cornville,  13  Maine,  293, 
1836,  where  the  action  was  brought  by  the  surveyor  or  supervisor  of  high- 
ways, who  built  a  bridge  without  pursuing  the  course  pointed  out  by  law; 
Allen  v.  Cooper,  22  Maine,  133  (deciding  that  the  power  of  a  committee 
with  authority  to  contract  to  make  a  road  does  not  embrace  power  to  accept 
the  work  or  waive  performance).  But  if  the  work  be  done  under  belief  of 
authority,  as  where  it  was  performed  under  a  contract  with  a  committee 
who  assumed  to  have  authority,  but  who,  in  fact,  had  none,  then  if  the  cor- 
poration accept  it,  or  even  knowingly  avail  itself  of  it,  it  will  be  liable  to 
pay  a  reasonable  compensation,  and  a  promise  thus  to  pay  may  be  implied  on 
the  part  of  a  corporation  from  the  acts  of  its  general  agent,  or  an  agent  with 
powers  of  a  general  character  [?] :  Abbot  u.  Herman,  7  Greenl.  118;  Hayden 
v.  Madison,  ib.  79.  "  Perhaps  these  two  cases  carry  the  doctrine  of  the  implied 
responsibility  of  corporations  as  far  as  it  ought  to  be  carried : "  Per  Emery, 
J.,  in  Euby  v.  Abysm.  Society,  15  Maine,  306,  308,  1839.  And  see,  particu- 
larly, Jordan  v.  School  District,  and  other  cases  cited,  supra;  Baltimore  v. 
Reynolds,  20  Md.  1,  1862;  Hague  v.  Philadelphia,  48  Pa.  St.  527. 


CH.  XIV.J  CONTRACTS.  383 

money  and  receiving  payments.  But  it  was  held  that  these 
officials  were  likewise  agents  of  limited  authority  —  that,  as 
they  would  have  had  no  power  to  make  the  contracts  origin- 
inally,  they  could  not  ratify  them ;  that  ratification  must  come 
from  the  principal — the  State — represented  hy  its  legislature.! 

§  388.  Letting  to  the  Lowest  Bidder. —  "Where  the  charter  or 
incorporating  act  requires  the  officers  of  the  city  to  award  con- 

1  Delafield  v.  State  of  Illinois,  2  Hill  (N.  Y.),  159,  175,  where  difference 
between  ratification  by  a  state  and  by  other  corporations  and  individuals  is 
clearly  set  forth  by  Branson,  J. ;  affirming,  S.  C.  8  Paige,  531 ;  S.  C.  further, 
26  Wend.  1 92.  In  further  illustration  of  the  text,  see  Hague  v.  Philadelphia, 
48  Pa.  St.  527 ;  Hotchin  v.  Kent,  8  Mich.  526 ;  Marsh  v.  Fulton  County,  10 
Wall.  676,  1870;  Dubuque,  &c.  College  v.  Dubuque,  13  Iowa,  555;  Estey  v. 
Inhabitants  of  Westminster,  97  Mass.  324 ;  Branham  o.  San  Jose,  24  Cal. 
585. 

In  applying  the  doctrine  that  unauthorized  corporate  acts  may  be  ratified, 
other  principles  of  law  must  be  borne  in  mind.  The  care  which,  in  this 
respect,  should  be  observed,  is  very  clearly  set  forth  by  Denio,  J.,  in  giving 
judgment  in  Peterson  v.  Mayor,  &c.  of  New  York,  17  N.  Y.  449,  454,  1858. 
"  For  instance,  no  sort  of  ratification  can  make  good  an  act  without  the 
scope  of  the  corporate  authority.  So  where  the  charter  or  a  statute  bind- 
ing upon  the  corporation  has  committed  a  class  of  acts  to  particular  officers 
or  agents,  other  than  the  governing  body,  or  where  it  has  prescribed  certain 
formalities  as  conditions  to  the  performance  of  any  description  of  corporate 
business,  the  proper  functionaries  must  act,  and  the  designated  forms  must 
be  observed,  and  generally  no  act  of  recognition  can  supply  a  defect  in 
these  respects:"  Brady  v.  Mayor,  &c.  20  N.  Y.  312;  Hodges  v.  Buffalo,  2 
Denio  (N.  Y.),  110;  17  N.  Y.  584.  Gates  v.  Hancock,  45  N.  H.  528;  Eeilly  v. 
Philadelphia,  60  Pa.  St.  467.    Supra,  Sees.  385, 386. 

Where  the  corporation  can  only  act  by  ordinance,  the  ratification  must  be 
by  ordinance :  MoCracken  v.  San  Francisco,  16  Cal.  591,  1860 ;  Piemental  ■«. 
San  Francisco,  21  Cal.  351;  Cross  v.  Morristown,  18  N.  J.  Eq.  305,  1867. 
Ante,  Chap.  XII. 

Legislature  may,  within  constitutional  limits,  ratify  or  authorize  ratifica- 
tion: Campbell  v.  Kenosha,  5  Wall,  194;  Supervisors  v.  Schenck,  ib.  772; 
Keithsburg  v.  Frick,  34  111.  405;  Mills  v.  Gleason,  11  Wis.  470;  Winn  v. 
Macon,  21  Geo.  275;  Grogan  v.  San  Francisco,  18  Cal.  590,  1861;  Hasbrouck 
v.  Milwaukee,  21  Wis.  217,  1866.  Ante,  p.  92,  Sec.  46;  p.  149,  note.  In 
Shawnee  County  v.  Carter,  2  Kansas,  115, 1863,  the  Supreme  Court  of  Kan- 
sas held  invalid,  as  not  being  within  the  rightful  scope  of  legislative  power, 
an  act  of  the  legislature  which  declared  valid  and  binding  bonds  which  had 
been  issued  by  the  county  officers  on  account  of  the  county  court  house, 
and  which  bonds  were  not  enforceable  against  the  county  because  differing 
in  form  and  substance  from  the  warrants  authorized  by  the  statute.  Such 
a  strict  limitation  on  legislative  power  is  not  generally  asserted.  See,  on 
this  point,  Chap.  IV.  ante. 


384  MUNICIPAL    CORPORATIONS.  [CH.  XIV. 

tracts  to  the  lowest  bidder,  a  contract  made  in  violation  of  its 
requirements  is  illegal ;  and  in  an  action  brought  on  such  con- 
tract for  the  work,  the  city  may  plead  its  illegality  in  defence.1 

§  389.  The  Supreme  Court  of  Michigan  has  affirmed,  while 
the  Supreme  Court  of  "Wisconsin  and  of  other  states  have 
denied,  the  proposition  that  where  a  city  charter  provides  that 
no  contracts  shall  be  made  by  the  city  except  with  the  lowest 
bidder,  after  advertisement  of  proposals,  it  does  not  prohibit 
the  corporation  from  contracting  to  lay  Nicholson  -pavement, 
though  the  right  to  lay  it  is  patented  and  owned  by  a  single 
firm.  The  question  is  close,  but  there  is  a  marked  tendency 
in  the  courts  to  adopt  the  Wisconsin  view.2 

1  Brady  v.  Mayor,  &c.  of  New  York,  20  N.  Y.  (6  Smith)  312,  1859.  It  is 
intimated  that  it  is  not  essential  to  the  defence  that  the  city  should  show  a 
fraudulent  collusion  between  the  bidder  and  the  officers  awarding  the  con- 
tract.. Whether  the  city  is  liable  on  a  quantum  meruit  to  one  who  has  bona 
fide  performed  labor  under  a  void  contract  where  the  work  has  been  accept- 
ed and  used,  was  not  determined :  lb.  S.  C.  2  Bosw.  173 ;  7  Abb.  Pr.  K.. 
234 ;  16  ib.  432.  As  further  illustrating  the  text,  see  People  v.  Flagg,  17  N. 
Y.  584 ;  Peterson  v.  Mayor,  &c.  17  N.  Y.  457,  referring  to  but  expressing  no 
opinion  upon  Christopher  v.  Mayor,  &c.  13  Barb.  567 ;  Appleby  v.  Mayor,  &c. 
15  How.  Pr.  R.  428 ;  Harlem  Gas  Company  v.  Mayor,  &c.  of  New  York,  33 
N.  Y.  309 ;  Macey  v.  Titcombe,  19  Ind.  135,  1862 ;  Bonesteel  v.  Mayor,  &c. 
22  N.  Y.  162;  Smith  v.  Mayor,  &c.  21  How.  Pr.  R.  1 ;  Nash  v.  St.  Paul,  8 
Minn.  172,  1863 ;  S.  C.  11  Minn.  174 ;  White  v.  New  Orleans,  15  La.  An.  667. 
There  can  be  no  recovery  against  a  municipal  corporation  for  extra  work, 
where  the  officers  who  requested  it  to  be  done  had  no  authority:  Hague  v. 
Philadelphia,  48  Pa.  St.  527 ;  Bonesteel  v.  Mayor,  &c.  of  New  York,  22  N.  Y. 
162. 

Where  the  charter  requires  that  all  work  for  the  city  shall  be  let  to  the 
lowest  bidder,  after  a  prescribed  notice  of  the  time  and  place  of  letting  shall 
have  been  given,  and  requires  that  similar  notice  shall  be  given  where 
work  is  re-let,  an  assessment  upon  a  lot  for  work  done  is  void,  if  the  contract 
was  let  or  re-let  without  notice :  Mitchell  v.  Milwaukee,  18  Wis.  92, 1864 ; 
see  also  Wells  v.  Burnham,  20  Wis.  112 ;  Hasbrouck  v.  Milwaukee,  21  Wis. 
217,  1866.  Owner  may,  in  such  a  case,  restrain  the  sale ;  lb.  The  contract 
let  must  be  the  same  that  was  advertised :  Nash  v.  St.  Paul,  11  Minn.  174. 

2  Dean  v.  Charlton,  23  Wis.  590,  1869 ;  Hobart  v.  Detroit,  17  Mich.  246, 
1868.  Dean  v.  Charlton,  supra,  was  approved  by  Sutherland,  J.,  in  Dolan  v. 
Mayor,  &c.  of  New  York,  4  Abb.  Pr.  (N.  S.)  397,  1868,  and  followed  by  the 
Supreme  Court  of  Louisiana  in  Burgess  v.  Jefferson,  21  La.  An.  143, 1869,  in 
which  it  appeared  that  the  contractors  with  the  city  had  the  exclusive 
right  to  lay  the  patented  pavement  in  the  state.  Liability  of  city  to  pat- 
entee to  pay  him  "royalty:"  Bigelow  v.  Louisville,  3  Fish.  Pat.  Cas.  602, 
1869. 


CH.  XIV.]  CONTRACTS.  38C 

§  390.  Where  the  municipal  authorities  were  required  by 
law  to  advertise  for  sealed  proposals  for  making  local  improve- 
ments, and  award  the  work  to  the  lowest  responsible  bidder,  to 
publish  a  notice  of  the  award,  and  to  allow  the  owners  of  the 
major  part  of  the  frontage  to  take  the  contract  upon  the  same 
terms  if  they  should  desire,  the  court  were  of  opinion  that  the 
city  authorities  had  no  power  to  do  work  which  could  not  be 
contracted  for  in  this  mode,  or  which  the  abutters  could  not 
themselves  perform,  and  that  the  award  of  a  contract  for  a  pat- 
ented pavement  to  the  assignee  of  the  patentee,  and  who  had 
the  exclusive  right  to  lay  the  same,  was  unauthorized,  and  the 
contract  void.1    . 

§  391.  In  an  action  on  a  contract  for  lighting  certain  streets 
in  New  York  City  with  gas,  it  appeared  that  the  company  had, 
by  law,  the  exclusive  right  to  furnish  that  part  of  the  city  with 
gas.  The  charter  of  the  city,  however,  required  all  contracts 
for  work  and  supplies  beyond  a  certain  value,  which  the  con- 
tract in  suit  exceeded,  to  be  let  to  the  lowest  bidder,  and  the  con- 
tract not  being  so  let,  it  was  claimed  to  be  void.  It  was  held 
that  since  the  company  had  the  exclusive  right  to  furnish  the 
gas  (which  prevented  competition),  the  provision  of  the  char- 
ter requiring  contracts  to  be  let  to  the  lowest  bidder  (with  n 
view  to  secure  competition)  was  inapplicable,  and  the  contract 
was  sustained  under  the  general  corporate,  power  of  the  city  to 
contract  for  the  lighting  of  its  streets.2 

§  392.  Although  notice  has  been  published  inviting  propo- 
sals to  do  public  work,  yet  the  contract  is  incomplete  until  the 
proposal  is  actually  accepted,  and  the  corporation  inviting  the 
proposals  is  not,  it  seems,  liable  to  damages  for  refusing  to 
accept  an  offer,  even  though  it  be  the  lowest  regular  offer 
made.  It  is  certainly  not  thus  liable  where  the  notice  and  the 
proposals,  with  respect  to  the  amount  and  form  of  the  security, 

1  Nicholson  Pavement  Company  v.  Painter,  35  Cal.  699, 1868.  This  case 
was  decided  before  Dean  v.  Charlton,  supra,  and  the  opinion  of  Sanderson. 
J.,  in  its  general  scope,  sustains  the  view  of  the  Wisconsin  court ;  and  ap- 
proving of  the  language  of  Field,  C.  J.,  in  Zottman's  Case,  20  Cal.  102,  treate 
"  the  mode  as  constituting  the  measure  of  the  power."    Post,  Chap.  XIX. 

1  Harlem  Gas  Company  v.  Mayor,  &c.  33  N.  Y.  309. 
49 


386  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

do  not  comply  with  the  requirements  of  the  ordinances  of  the 
city,  and  where  these  provided  that  contracts  should  not  be 
executed  until  laid  before  the  common  council.1 

§  393.  Contracts  of  Suretyship. — A  municipal  corporation 
cannot,  without  legislative  authority,  become  surety  for  another 
corporation  or  individual ;  cannot  guaranty  the  bonds  or  ob- 
ligations of  another,  or  make  accommodation  indorsements. 
Such  an  authority  cannot  be  implied  or  deduced  from  the  gen- 
eral and  usual  powers  conferred  upon  such  corporations.  Al- 
though such  a  corporation  may  have  power  directly  to  accom- 
plish a  certain  object,  and  itself  expend  its  revenues  or  money 
therefor,  yet  this  does  not  give  or  include  the-power  to  lend  its 
credit  to  another  who  may  be  empowered  to  effect  the  same 
object.  Expending  money  by  a  city  council,  as  agents  of  ad- 
ministrators of  their  constituents,  is  a  very  different  thing  from 
binding  their  constituents  by  a  contract  of  suretyship — "a 
contract  which  carries  with  it  a  lesion  by  its  very  nature." 2 

1  Smith  o.  Mayor,  &c.  of  New  York,  ION.  Y.  (6Seld.)504,1853;  affirming, 
S.  C.  4  Sanrlf.  S.  C.  E.  221.  "The  notice  inviting  proposals  to  do  the  work," 
says  Willard,  J.,  delivering  the  opinion  of  the  Court  of  Appeals  (10  N.  Y. 
504),  "  did  not,  in  my  judgment,  hind  the  street  commissioner  of  the  corpo- 
ration to  accept,  at  all  events,  the  lowest  bid,  even  though,  in  all  respects, 
formal.  Until  the  bid  is  accepted  by  some  act  on  the  part  of  the  corpora- 
tion, no  obligatory  contract  was  created."  See,  also,  People  v.  Croton  Aque- 
duct Board,  26  Barb.  240 ;  State  ».  Directors,  &c.  5  Ohio  St.  234,  1855  ;  Alte- 
mus  v.  Mayor,  &c.  6  Duer,  446 ;  Argenti  v.  San  Francisco,  16  Cal.  255. 

Further  as  to  lowest  bidder,  see  chapter  on  Mandamus,  post. 

8  Louisiana  State  Bank  v.  Orleans  Navigation  Company,  3  La.  An.  294, 
1848.  In  this  case  the  municipal  corporation  was  sought  to  be  made  liable 
upon  its  guaranty  of  bonds  issued  by  the  navigation  company,  which  the 
mayor,  in  the  name  of  the  municipality,  was  authorized,  by  certain  resolu- 
tions of  the  council,  to  indorse.  It  was  held  that  the  council  transcended 
its  powers,  and  the  guaranty  did  not  impose  any  legal  obligation  upon  the 
municipality.  The  disability  of  such  corporations,  without  express  power, 
to  enter  into  contracts  of  suretyship,  is  shown  in  the  masterly  and  ex- 
haustive opinion  delivered  by  Busies,  0.  J. 

A  municipal  corporation  has  no  implied  power  to  lend  its  credit  or  make 
accommodation  paper  for  the  benefit  of  citizens,  to  enable  them  to  execute 
private  enterprises :  Clark  e.  Des  Moines,  19  Iowa,  199,  224, 1865 ;  1  Parsons, 
N.  &.  B.  166 ;  Smead  v.  Bailroad  Company,  11  Ind.  105. 

The  power  to  borrow  money  for  any  public  purpose  does  not  authorize  the 
loan  of  the  credit  of  the  city  :  Chamberl^jn  y.  Burlington,  19  Iowa,  395 ; 
contra,  Rogers  v.  Burlington,  3  Wall.  654,  four  judges  djssentjng.    And  see 


CH.  XIV.J  CONTRACTS.  387 

§  394.  Authorized  Contracts. —  Rights  and  Liabilities. — But 
with  respect  to  authorized  contracts  a  municipal  corporation 
has  the  same  rights  and  remedies,  and  ia  bound  thereby,  and 
may  be  sued  thereon  in  the  same  manner  as  individuals.  Thus, 
if  such  a  corporation,  duly  empowered,  enters  into  a  partner- 
ship relation  with  private  individuals  with  respect  to  the  profits 
to  be  derived  from  a-  market  house,  its  rights,  especially  as  re- 
gards the  copaitners  and  the  financial  administration  of  the  part- 
nership property,  are  not  different  from  those  of  an  ordinary 
partner.1 

§  395.  So  where  a  municipal  corporation,  in  order  to  se- 
cure the  erection  of  gas  works,  passed  an  ordinance  whereby 
the  gas  works  and  their  income  were  placed  in  the  hands  of 
trustees,  for  the  benefit  of  those  who  loaned  money  to  execute 
the  undertaking,  such  ordinance  is  a  contract,  and  cannot  be 
violated  by  the  city,  although  it  may  deem  it  for  the  interest 
of  its  citizens  to  do  so ;  nor  is  it  in  the  power  of  the  legislature 
to  authorize  its  violation.2 

§  396.  So  where  the  mayor  and  council  have,  by  the  char- 
ter, power  to  make,  in  their  corporate  capacity,  all  such  con- 
tracts as  they  may  deem  necessary  for  the  welfare  of  the  cor- 
poration, they  may  contract  to  sell  stock  owned  by  the  city  in  a 
private  corporation,  to  enable  the  city  to  pay  its  debts ;  and 

Meyer  v.  Muscatine,  1  Wall.  384.  The  author  cannot  but  think  that  power 
to  a  corporation  to  borrow  money  should  not  be  construed  to  give  the 
power  to  loan  its  credit,  but  only  to  borrow  money  for  legitimate  and 
proper  municipal  objects,  as  shown  by  the  charter  or  constituent  act  of  the 
corporation :  See  Payne  v.  Brecon,  3  Hurl.  &  Nor.  572.  Ante,  p.  126,  Sec. 
81. 

1  New  Orleans  v.  Guillotte,  12  La.  An.  818,  1857.  In  New  Orleans  v.  St. 
Louis  Church,  11  La.  An.  244, 1856,  it  was  contended  by  the  counsel  for  the 
city  that  even  if  certain  resolutions  in  favor  of  the  defendants  allowing 
them  to  establish  a  cemetery  within  the  city  amounted  to  a  contract;  and 
though  their  repeal  be  not  justified  by  the  facts,  and  a  violation  of  the  con- 
tract by  the  city,  yet  that  the  latter  has  the  power  to  violate  its  contracts, 
and  the  defendants  have  no  redress  except  in  an  action  for  damages.  But 
this  doctrine  was  rejected  by  the  court,  which  declared  it  to  be  as  "  un- 
sound as  it  is  novel,"  since  a  liability  for  damages  is  "the  very  opposite  of 
a  recognition  of  a  right  to  violate  the  contract."    Per  Buchanan,  J. 

2  Western  Savings  Fund  Society  v.  Philadelphia,  31  Pa.  St.  175, 1854;  Same 
v.  Same,  lb.  185,  1858 ;  ante,  Chap.  IV.  p.  86,  Sec.  41. 


388  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

the  discretionary  power  with  which  the  mayor  and  council 
are  invested  cannot,  when  bona  fide  exercised,  he  controlled  by 
a  court  of  equity,  at  the  instance  of  property  owners  and  tax- 
payers.1 

§  397.  Power  to  a  city  corporation  to  pave  streets  at  the 
expense  of  the  owners  and :  recover  the  amount  from  them  if 
they  fail  themselves  to  pave  when  required  by  ordinance,  gives 
the  corporation  the  power  to  purchase  paving  materials  and  incur 
a  debt  for  that  purpose ;  and  in  a  suit  by  the  vendor  of  such 
materials  against  the  corporation,  it  is  no  defence  that  the 
council  had  not  passed  an  ordinance  before  they  purchased 
the  materials,  requiring  the  owners  to  pave :  this  is  a  matter 
to  which  a  creditor  is  not  bound  to  look.  The  question  would 
be  different  if  the  city  had  sought  to  make  the  lot  owner  lia- 
ble for  the  cost  of  paving;  in  such  case,  it  must  show  a  strict 
compliance  with  the  requirements  of  its  charter.2 

§  398.  Settlement  of  Disputed  Claims,  $c. —  Growing  out  of 
its  authority  to  create  debtsand  to  incur  liabilities,  a  munici* 
pal  corporation  has  power  to  settle  disputed  claims  against  it, 
and  an  agreement  to  pay  these  is  not  void  for  want  of  consid- 
eration.3 If  it  has  obtained  a  contract  which,  by  mistake  or 
a  change  of  circumstances,  it  deems  to  operate  oppressively 
upon  the  other  party,  an  agreement  to  make  an  additional  com.' 
pensation,  or  to  modify  or  annul  it,  is  not  invalid  for  want  of 
consideration.*    A  town  may  make  a  contract  with  a  creditor 

1  Semmes  v.  Columbus,  19  Ga.  471,  1856.  Ants,  p.  106,  Sec.  58 ;  post,  chap» 
ter  on  Corporate  Property.     Post,  Chap.  XX. 

2  Bigelow  v.  Perth  Amboy,  1  Dutch.  (N.  J.)  297,  1855.    Post,  Chap.  XIX. 

*  Augustas.  Leadbetter,  16  Maine,  45,  1839;  Bean  ».  Jay,  23  Maine,  117, 
121, 1843 ;  People  v.  Supervisors,  27  Cal.  655 ;  People  v.  Coon,  25  Cal.  648.  It 
may  annex  conditions  to  a  proposal  of  settlement,  and  is  not  liable  unless 
the  conditions  are  met :    Merrill  t>.  Dixfield,  30  Maine,  157,  1849. 

*  Bean  v.  Jay,  23  Maine,  117, 121 ;  Meech  v.  Buffalo,  29  N.  Y.  198,  1864. 
Further,  as  to  consideration:  Bailey ville  v.  Lowell,  20  Maine,  178,1841; 
Nelson  v.  Milford,  7  Pick.  18, 1828— valuable  opinion  by  Parker,  C.  J.  Ante, 
Chap.  IV.  p.  90,  Sec.  44.  The  power  to  sue  and  be  sued  gives  to  a  corpora- 
tion the  right  to  settle  or  comprtimise  claims.  Where  a  city  has  a  judgment, 
from  which  an  appeal  is  about  to  be  taken,  the  council  may,  if  done  in  good 
i'aith,  cancel  the  judgment  on  the  payment  of  costs,  and  such  an  agreement, 


CH.  XIV.]  CONTRACTS.  389 

whereby  the  latter  agrees  to  discount  or  throw  off  a  portion  of 
his  debt,  and  such  an  agreement,  if  founded  on  a  sufficient 
consideration,  will  be  enforced.1 

§  399.  Contracts  with  Attorneys. —  Resulting  also  from  the 
power  to  make  contracts,  to  own  property,  and  to  incur  liabil- 
ities, is  the  authority  in  a  municipal  corporation  to  employ  an 
attorney?  and  the  corporation  is  bound  to  pay  for  services  ren- 
dered by  him,  on  due  employment,  without  an  express  vote  to 
that  effect.3  If  a  corporation  attorney,  after  his  term  of  office 
has  expired,  continues  in  the  management  of  suits  in  which 
the  corporation  is  interested,  without  objection  from,  and  with 
the  knowledge  of,  the  corporation,  and  of  his  successor,  he 
may,  it  has  been  held,  recover  for  such  services.* 

when  executed,  is  binding  upon  the  corporation :  Petersburg  v.  Mappin, 
14  111.  193,  1852. 

Power  to  submit  to  arbitration:  Dix  v.  Dummerston,  19  Vt.  263 ;  Griswold 
v.  Stonington,  5  Conn.  367 ;  Canal  Company  v.  Swann,  5  How.  (U.  S.)  83. 

1  Baileyville  v.  Lowell,  20  Maine,  178, 1841.  In  this  case,  the  town  against 
which  the  creditor  had  an  execution  had  the  option,  and  was  authorized 
to  raise  the  money  by  loan  or  by  assessment ;  and  if  in  the  latter  mode, 
either  at  once  or  by  instalments.  If  not  raised  and  paid,  the  creditor  was 
authorized  to  cause  the  property  of  the  inhabitants  to  be  distrained  upon 
his  writ.  It  was  held,  under  these  circumstances,  that  an  agreement  by  the 
creditor,  which  was  accepted  and  complied  with  by  the  town,  that  if  the 
town  would  at  once  assess  the  amount  required,  and  collect  the  same,  he 
would  abate  a  portion  of  his  debt,  was  founded  upon  a  sufficient  considera- 
tion, and  was  binding  upon  him. 

2  Smith  v.  Sacramento,  13  Cal.  531.  May  employ,  unless  specially  re- 
stricted, an  attorney  in  addition  to  the  city  attorney:  lb..  See  Hornblower 
v.  Dunden,  35  Cal.  644.  Compare  Olough  v.  Hart,  decided  by  the  Supreme 
Court  of  Kansas,  reported  in  11  Am.  Law  Reg.  (N.  S.)  95.  This  case  holds 
that  there  is  prima  facie,  if  not  absolutely,  an  implied  restriction  upon  city 
and  county  corporations  to  employ  other  attorneys  to  perform  the  precise 
duties,  as  prescribed  by  law,  of  the  city  and  county  attorneys  elected  by  the 
people  or  provided  for  by  incorporating  statutes.  A  municipal  corporation 
which  has  employed  an  attorney  to  file  a  bill  seeking  to  destroy,  by  suit, 
the  existence  of  the  corporation  itself,  cannot  apply  the  corporate  funds  in 
payment  for  such  services :  Daniel  v.  Mayor,  &c.  11  Humph.  (Tenn.)  582, 
1851. 

3  Langdon  v.  Castleton,  30  Vt.  285,  1858. 

•4  lb.  See  Harrington  v.  School  District,  30  Vt.  155 ;  supra,  Sec.  383,  as  to 
implied  contracts.  Compare  Clough  v.  Hart,  11  Am.  Law  Reg.  (N.  S.)  95. 
Compensation  of  city  attorney:  See  Carroll  v.  St.  Louis,  12  Mo.  444;  Orton  v. 


390  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

§  400.  Contracts  for  Local  Improvements. — A  municipal  cor- 
poration contracted  with  a  paver  to  do  certain  work  at  a  fixed 
price,  of  which  it  was  to  pay  one-third  and  the  owners  two- 
thirds.  It  was  judicially  determined  that  the  proprietors  were, 
in  law,  liable  to  pay  only  one-third,  and  it  was  held,  in  an 
action  by  the  paver  against  the  corporation,  that  it  was  a  war- 
rantor for  the  remaining  one-third,  and  it  was  held  liable  ac- 
cordingly.1 But  where  the  charter  or  constituent  act,  in,  refer- 
ence to  improving  streets,  provides  that  the  city  shall  be  liable 
to  the  contractor  for  so  much  only  of  the  improvement  as  is 
occupied  by  streets  and  alleys  crossing  the  same,  and  that  the 
owners  of  adjacent  lots  shall  be  liable  for  the  rest,  the  city  is 
not  liable  for  the  deficiency,  in  case  the  adjacent  property  does 
not  sell  for  enough  to  pay  the  assessment,  and  though  the 
owner  be  a  non-resident.2 

State,  12  Wis.  509 ;  also,  chapter  on  Corporate  Officers,  ante.  Liability  for 
attorney's  fee  under  charter  or  special  statutes,  see  Brady  v.  Supervisors,  2 
Sandf.  S.  C.  R.  460,  affirmed  10  N.  Y.  (6  Seld.)  260,  1851,  for  reasons  given 
by  Oakley,  C.  J.,  in  2  Sandf.  460;  Halstead  ».  Mayor,  &c.  of  New  York,  3 
Comst.  430;  State  ».  New  Orleans,  20  La.  An.  172;  Bright  v.  Hewes,  19  La. 
An.  666;  Parker  !>.  Williamsburg,  13  How.  Pr.  250 ;  Clough  v.  Hart,  supra,  and 
cases  cited  by  Valentine,  J. 

1  Tounier  v.  Municipality,  5  La.  An.  298.  See,  also,  Cronan  v.  Same,  ib. 
537,  where,  by  the  construction  of  the  contract,  the  city  was  held  liable  for 
the  whole  expense,  the  proprietors  having  refused  to  make  payment.  A 
contractor  failing,  for  want  of  power  in  a  city  to  be  able  to  get  his  pay  from 
special  assessments,  the  city  was  held  liable  to  him,  it  being  regarded  as 
guaranteeing  that  it  possessed  the  specific  powers  relied  on  by  the  con- 
tractor for  his  compensation :  Maher  v.  Chicago,  38  111.  266,  1865.  But  see 
Chicago  v.  People,  48  111.  416,  where  the  first  case  is  explained  and  distin- 
guished. See,  also,  Reilly  v.  Philadelphia,  60  Pa.  St.  467.  Right  of  con- 
tractor to  sue  the  corporation  where,  in  consequence  of  its  neglect,  it  would 
be  nugatory  to  proceed  against  the  owners  or  the  property:  See  Michel  v. 
Police  Jury,  9  La.  An.  67;  Newcomb  v.  Same,  4  ib.  233;  Michel  v.  Same,  3 
ib.  123.  Compare  Reock  v.  Newark,  33  N.  J.  Law,  129.  Further,  as  to  local 
improvements,  see  Chap.  XIX.  post.    Supra,  Sees.  383, 389. 

''  New  All  any  v.  Sweeney  (construing  general  Towns  and  Cities  Act),  13 
Ind.  245,  1859;  Lucas  v.  San  Francisco,  7  Cal.  463;  Lovell  v.  St.  Paul,  10 
Minn.  290.  Contracts  with  municipal  corporations  are  construed  with  refer- 
ence to  the  chartered  or  corporate  powers  of  the  city :  13  Ind.  245,  supra. 
If  the  city  corporation  agrees  with  the  contractor  to  collect  the  assessments  from 
the  abutting  owners,  a  failure  to  do  so  will  render  it  liable;  Morgan  v. 
Dubuque,  28  Iowa,  575, 1870.    See  Beard  v.  Brooklyn,  31  Barb.  142. 


CH.  XIV.]  CONTRACTS.  391 

§  401.  A  city  charter  required  the  consent  of  a  majority  of 
property  owners  to  make  certain  improvements,  which,  when 
made,  were  chargeable  upon  the  adjacent  jyroperty.  An  ordi- 
nance provided  that  contractors  doing  such  work  should  look 
to  the  adjacent  property,  and  not  to  the  city,  for  their  pay. 
Under  these  circumstances,  the  city  entered  into  a  contract 
with  the  plaintiff  to  grade  a  certain  street,  the  plaintiff  agree- 
ing that  he  would  receive  his  pay  from  the  adjoining  property. 
The  plaintiff  performed  the  work,  and,  inasmuch  as  the  adja- 
cent owners  had  never  given  their  consent  to  the  making  of 
the  improvement,  he  sued  the  city  on  the  contract,  to  recover 
for  the  work  done ;  and  it  was  held  that  the  action  could  not 
be  maintained.1 

§  402.  It  has  been  asserted  that  where  the  expense  of 
making  a  local  improvement  is  not  to  be  raised  by  a  general 
tax,  but  solely  upon  the  property  benefited,  that  a,  failure  of  the 

1  Leavenworth  v.  Rankin,  2  Kansas,  357,  1864;  Swift  v.  Williamsburg,  24 
Barb.  427;  Goodrich  v.  Detroit,  12  Mich.  279;  Johnson  «.  Common  Council, 
16  Ind.  227;  New  Albany  v.  Sweeney,  13  Ind.  245. 

Where  the  contractor  has  agreed  to  look  for  payment  to  the  lot  bene- 
fited, or  to  the  owner,  he  cannot  hold  the  city,  unless  it  may  be  in  cases 
where  the  whole  proceeding  is  void,  or  the  city  neglects  its  duty :  Kearney 
v.  Covington,  1  Met.  (Ky.)  339;  Smith  v.  Milwaukee,  18  Wis.  63,  1864;  Fin- 
ney v.  Oshkosh,  ib.  309;  Chicago  ^.People,  48111.  416;  Euppert v. Baltimore, 
23  Md.  184;  Louisville  v.  Henderson,  5  Bush  (Ky.),  515, 1869. 

A  city  advertised  for  proposals  to  do  certain  public  work,  and  the  plaintiff 
made  proposals,  which  were  accepted,  without  qualification,  by  an  entry  on 
city  records ;  and  it  was  decided  that  the  statement  in  the  published  notice, 
"  the  expense  of  the  work  to  be  assessed,"  &C,  was  part  of  the  contract,  no 
other  provision  for  payment  having  been  made,  and  that  the  plaintiff  could 
not  maintain  an  action  against  the  city  until  after  the  assessment  and  collec- 
tion of  his  compensation,  or  until  it  or  its  officers  failed  to  proceed  with  rea- 
sonable diligence,  after  the  expense  of  the  work  was  ascertained,  to  make  and 
collect  an  assessment,  and  to  pay  over  money  thus  collected :  Hunt  v.  Utica, 
18  N.  Y.  442,  1858. 

Further,  as  to  the  rights  and  remedies  of  the  contractor;  of  the  property 
owner,  and  the  liabilities  of  the  municipal  corporation :  Smith  v.  Milwaukee, 
18  Wis.  63;  Foote  v.  Same,  ib.  270;  Bond  v.  Newark,  19  N.  J.  Eq.  376; 
Fleteher  v.  Oshkosh,  18  Wis.  228,  232;  Palmer  v.  Stump,  29  Ind.  329;  Mc- 
Spedon  v.  New  York,  7  Bosw.  601 ;  Reilly  v.  Philadelphia,  60  Pa.  St.  467 ; 
Whalen  v.  La  Crosse,  16  Wis.  271;  Flournoy  v.  Jeffersonville,  17  Ind.  169; 
Creighton  v.  Toledo,  18  Ohio  St.  447;  Goodrich  v.  Detroit,  12  Mich.  279; 
Buffalo  v.  Halloway,  7  N.  Y.  (3  Seld.)  493;  Storrs  v.  Utica,  17  N.  Y.  104. 
Post,  chapter  on  Taxation  and  Local  Improvements.    Supra,  Sec.  384. 


392  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

corporation,  though  it  is  only  the  agent  of  the  owners  to  be 
assessed,  to  discharge  its  duty,  by  making  the  necessary  assess- 
ment, or  its  unreasonable  delay  in  collecting  and  paying  over 
the  money,  -  gives  the  contractor  a  right  to  recover  his  com- 
pensation in  an  action  against  the  corporation.1  The  right  to 
a  general  judgment  should,  in  our  opinion,  be  limited,  in  any 
event,  to  cases  where  the  corporation  can  afterwards  reimburse 
itself  by  an  assessment.  For,  why  should  all  be  taxed  for  the 
failure  of  the  council  to  do  its  duty  in  a  case  where  the  con- 
tractor has  a  plain  remedy,  by  mandamus,  to  compel  the  coun- 
cil to  make' the  necessary  assessment  and  proceed  in  the  col- 
lection thereof  with  the  requisite  diligence  ? 

§  403.  Same. — Corporate  Control  by  Stipulation. — An  agree- 
ment by  a  contractor  to  execute  a  public  improvement  under 
the  general  direction  and  supervision  of  a  committee  of  a  city, 
makes  such  committee  —  acting  reasonably,  and  honestly,  not 
arbitrarily  and  capriciously  —  exclusively  the  judge,  not  only 
as  to  materials  and  manner,  but  also  as  to  the  time  of  doing 
the  work.2  But  where  a  written  contract  has  been  entered 
into  between  a  municipal  corporation  and  a  contractor,  a  gen- 
eral provision  of  an  ordinance  that  the  work  shall  be  done 
under  the  directions  of  certain  officers,  confers  no  authority 
upon  them  essentially  to  change  or  modify  the  provisions  of 
the  contract.3     If,  in  a  contract  for  a  public  work,  the  corpora- 

1  Beard  a.  Brooklyn,  31  Barb.  142, 1860.  See  Goodrich  v.  Detroit,  12  Mich. 
279,  1864;  dimming  v.  Mayor,  &c.  of  Brooklyn,  11  Paige,  596,  1845;  Baker 
v.  Utica,  19  N.  Y.  (5  Smith)  326,  1859;  Green  v.  Mayor,  &c.  of  New  York,  5 
Abb.  Pr.  Rep.  503.  See,  generally,  as  to  assessments  for  public  works: 
Doughty  v.  Hope,  3  Denio,  249 ;  Manice  v.  Mayor,  8  N.  Y.  120 ;  People  v. 
Mayor,  &c.  of  New  York,  5  Barb.  43;  8  Barb.  95;  23  Barb.  390.  In  princi- 
ple sustaining  the  view  suggested  in  the  text:  Reock  v.  Newark,  33  N.  J. 
Law,  129.  And  see  opinion  of  Field,  C.  J.,  in  Argenti  v.  San  Francisco,  16 
Cal.  255,  282,  1860.    Post,  Chap.  XX.  on  Mandamus. 

''  Chapman  t.  Lowell,  4  Cush.  378,  1849,  relating  to  drains  in  the  streets  of 
the  city.  As  to  power  of  chancery  to  correct  mistake  of  the  engineer  or 
other  person  whose  decision  both  parties  to  the  contract  have  agreed  to 
abide  by,  see  Railroad  Company  v.  Veeder,  17  Ohio,  385. 

s  Bonesteel  v.  Mayor,  &c.  of  New  York,  22  N.  Y.  162,  1860.  But  the 
authority  of  the  corporation  may  be  implied  from  its  having  by  its  own  act 
rendered  extra  materials  necessary"  to  conform  the  work  to  the  conditions 
of  the  contract:  Messenger  v.  Buffalo,  21  N.  Y.  196,  1860. 


CH.  XIV.J  CONTRACTS.  393 

tion  employer  reserves  the  right  to  make  alterations  in  the 
form,  dimensions,  or  materials  of  the  work,  the  contractor  is 
bound,  by  any  such  alterations  made  in  good  faith ;  but  such  a 
clause  does  not  authorize  the  employer  to  annul  the  agreement, 
or  to  stop  the  work  in  an  unfinished  state.1 

404.  Evidences  of  Indebtedness  —  Negotiable  Bonds. — We  have 
elsewhere  discussed  the  power  of  the  legislature  to  authorize 
the  issue  of  municipal  bonds  in  aid  of  railway  and  other  like 
enterprises,2  and  have  also  considered  the  express  and  implied 
power  of  municipal  corporations  to  borrow  money  and  issue 
obligations  therefor.3  It  appropriately  belongs  to  this  place, 
however,  to  notice  more  at  length  the  different  kinds  of;  corporate 
evidences  of  debt,  and  the  rights  and  remedies  of  the  holders 
thereof,  and  to  this  general  subject  will  the  residue  of  the  pres- 
ent chapter  be  devoted. 

§  405.  Bonds  issued  by  municipal  corporations  on  time,  ne- 
gotiable in  form,  and  for  sale  in  the  market,  under  express 
authority  from  the  legislature,  are  negotiable,  with  all  the  quali- 
ties and  incidents  of  negotiability.  Such  securities  are  made 
to  raise  money  by  their  sale,  and  this  object  would  be  defeated 
if  they  were  subject  to  equities  (where  the  power  to  issue  ex- 
ists) in  the  hands  of  bona  fide  holders.4 

1  Clark  v.  Mayor,  &c.  of  New  York,  4  Comst,  338,  1850.  Remedy  of  con- 
tractor, and  measure  of  damages  in  such  a  case,  considered:  Ib.  It  is  held, 
in  Vermont,  that  a  person  who  has  contracted  with  the  proper  town  officers 
to  build  a  road,  cannot  proceed  with  his  contract  after  notice  of  an  appeal 
and  recover  of  the  town  therefor.  This  decision  is  based  upon  a  construc- 
tion of  the  statute  of  that  state  by  which  the  appeal  is  intended  to  stay  or 
suspend  all  proceedings  toward  building  the  road,  and  the  contractor  was 
bound  to  take  his  contract,  subject  to  the  contingency  of  the  appeal  allowed 
by  law:   Taft  v.  Pittsford,  28  Vt,  (Wms.)  286,  1856. 

'  Ante,  p.  144,  et  seq. 

3  Ante,  p.  126,  et  seq. 

"  Mercer  County  v.  Hacket,  1  Wall.  83,  1863  (denying  Diamond  v.  Lau- 
rence County,  37  Pa.  St.  358) ;  Meyer  v.  Muscatine,  1  Wall.  384;  Gelpcke  v. 
Dubuque,  ib.  175;  Mora'n  v.  Miami  County,  2  Black.  722,  1862;  Clapp  v.  Ce- 
dar County,  5  Iowa,  15;  Morris  Canal  Company  v.  Fisher,  1  Stockt.  Ch.  667, 
1855 ;  Craig  v.  Vicksburg,  31  Miss.  216 ;  Jackson  v.  Railroad  Company,  2 
Am.  Law  Reg.  (N.  S,)  585;  S.  C.  ib.  748,  and  note  of  Judge  Redfield;  Chapin 
v.  Railroad  Company,  8  Gray,  575;  Clark  v.  Janesville,  10  Wis,  136;  Gould 
50 


394  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

§  406,  Ordinary  Corporation  Orders  or  Warrants. — But  ordi- 
nary city,  county,  and  town  orders  or  warrants  are,  in  some  res- 
pects, different  from  bonds  of  the  character  just  mentioned,  and 
in  the  author's  judgment,  the  better  opinion  is,  that  there  is  no 
implied  power  in  the  officers  of  a  town,  county,  or  city  corpora- 
tion to  issue  warrants  or  orders  which  shall  be  free  from  equities 
in  the  hands  of  holders;  that  the  existence  of  such  a  power  is 
not  necessary  as  an  incident  to  those  ordinarily  granted  or  to 
carry  out  the  purposes  of  the  corporation,  and  would  be 
attended  with  abuse  and  fraught  with  danger.  Ordinary 
warrants  or  orders,  negotiable  in  form,  may  be  made  by  the 
proper  officers,  and  in  many  of  the  states  such  instruments 
may  be  transferred  by  delivery  or  indorsement,  and  the  holder 
sue  thereon  in  his  own  name,  yet  they  are  not  commercial  or 
negotiable  paper  in  the  hands  of  innocent  holders  so  as  to  ex- 
clude inquiry  into  the  legality  of  their  issue  or  preclude  de- 
fences thereto.1     Ordinary  warrants  drawn  by  one  officer  on 

v.  Sterling,  23  N.  Y.  464;  S.  C.  1  Am.  Law  Keg.  (N.  S.)  290,  and  note;  Clark 
t>,  Des  Mojnes,  199,  213,  and  cases  cited:  White  v.  Railroad  Company,  21 
How.  575;  Bank  v.  Railroad  Company,  3  Kern.  599;  S.  C.  4  Duer,  480;  Au- 
rora v.  West,  22  Ind.  88;  Commissioners  v.  Bright,  18  Ind.  93;  Barretts 
Schuyler  County,  44  Mo.  197 ;  De  Voss  v.  Richmond,  18  Gratt.  338;  7  Am. 
Law  Reg.  (N.  S.)  589;  State  v.  Madison,  7  Wis.  688;  Clark  v.  Janesville,  10 
Wis.  136,  1859;  Maddox  v.  Graham,  2  Met.  (Ky.)  56,  1859. 

Coupons  attached  to  such  bonds  are  negotiable,  and  the  holder  may  sue 
thereon  in  his  own  name  without  being  interested  in  or  producing  the 
bonds  to  which  they  were  originally  attached :  Thompson  v.  Lee  County,  3 
Wall.  327,  1865;  Murray  v.  Lardner,  2  Wall.  110,  1864;  Knox  County  v.  As- 
pinwall,  21  How,  539,  1858;  Johnson  v.  Stark  County,  24111.75;  City  v. 
Lamson,  9  Wall.  478,  1869 ;  Railroad  Company  v.  Otoe  County,  1  Dillon,  C. 
C,  R.  338,  An  action  on  a  coupon  not  barred  in  less  time  than  the  bond  to 
which  it  was  originally  attached ;  City  v.  Lamson,  supra.  Haw  declared  on  ; 
Ring  v.  County,  6  Iowa,  §65;  Railroad  Company  v.  Otoe  County,  supra- 
Wiley  v.  Board,  &c.  11  Minn,  371,  Effect  of  judgment  for  interest  as  an  es- 
toppel in  a  subsequent  suit  for  interest  or  principal :  Bank  v.  Navigation 
Company,  3  La.  An.  294.    As  to  interest,  infra,  Sec.  414. 

Municipal  corporations  may  plead  the  statute  of  limitation*  in  actions 
against  them  on  their  bonds  payable  at  a  fixed  time ;  De  Cordova  v.  Galves- 
ton, 4  Texas,  470, 1849;  see  VnderhiU  v.  Trustees,  17  Cal.  172. 

1  Emery  v.  Mariayille,  56  Maine,  315;  Clark  v.  Des  Moines,  19  Iowa,  199, 
211-214,  1865,  and  cases  cited;  ciark  v.  Polk  County,  ib.  248;  Peoples 
County,  11  Cal.  170,  1858;  Sturteyant  v.  Liberty,  46  Maine,  457;  Smith  «. 
Cheshire,  13  Gray,  318,  1859;  Andover  v.  Grafton,  7  N.  H.  298, 1834;  com- 
pare, however,  Bank  v.  Parmington,  41  N,  H,  32;   Dalrymple  v.  Whitting- 


CH.  XIV.]  CONTRACTS.  395 

another  officer  of  the  same  corporation  are  not  bills  of  ex- 
change, as  such  hills  involve  the  idea  of  two  parties,  but  are 
orders  by  the  corporation  on  itself — mere  directions  to  the 
treasurer  to  pay  the  amount  to  the  bearer.1 

§  407.  Banking  and  trading  corporations  have  the  implied 
or  incidental  power  to  make  negotiable  paper  ;2  and  the  same  rule 

ham,  26  Vt.  345;  Inhabitants  v.  Weir,  9  Ind.  224,  1857 ;  School  District  v. 
Thompson,  5  Minn.  280,  1861 ;  S.  P.  Goodnow  v.  Commissioners,  11  ib.  31, 
1865;  Hyde  v.  Franklin,  27  Vt.  185,  1855;  approved,  Taft  v.  Pittsford,  28  ib. 
286;  Halstead  v.  Mayor,  &c.  3  Comst.  430;  S.  C.  5  Barb.  218;  The  Floyd  Ac- 
ceptances, 7  Wall.  666,  and  reasoning  of  Mr.  Justice  Miller;  People  v.  Gray, 
23  Cal.  125;  Ib.  447.  Warrants,  duly  signed  and  sealed,  are  prima  facie 
valid,  but  open  to  defences:  Commissioners  v.  Keller,  6  Kansas,  510;  Com- 
missioners  D.  Day,  19  Ind.  540,  1862.    Infra,  Sec.  411. 

Transferee  or  holder  may  sue  in  his  own  name:  Emery  «.  Mariaville,  56 
Maine,  315;  Crawford  County  «.  Wilson,  2  Eng.  (Ark.)  214;  Clark  v.  Des 
Moines,  19  Iowa,  199;  Campbell  v.  Polk  County,  3  Iowa,  467;  Clark  v.  Polk 
County,  19  Iowa,  248.  Otherwise  in  Massachusetts:  Smith  d.  Cheshire,  13 
Gray,  318,  treating  a  town  order,  payable  to  bearer,  as  a  mere  chose  in 
action  which  could  not  be  enforced  in  the  name  of  an  assignee.  In 
many  of  the  states,  "the  real  party  in  interest"  may  sue  in  his  own  name. 
In  Vermont,  as  to  right  of  holder  of  town  and  county  orders  to  sue  in  his 
own  name,  see  Dalrymple  v.  Whittingham,  26  Vt.  345;  compare,  Taft  v. 
Pittsford,  28  Vt.  286,  289;  Hyde  v.  Franklin,  27  Vt.  185.  Right  of  indorsee  to 
sue  or  enforce  by  mandamus  in  his  own  name;  Kelly  v.  Mayor,  &c.  4  Hill,  263 ; 
Clark  v.  School  District,  3  Rh.  Is.  199;  Moss  «.  Oakley,  2  Hill  (N.  Y.),  265; 
Commissioners  v.  Day,  19  Ind.  450;  Dively  v.  Cedar  Falls,  21  Iowa  565; 
Justices  v.  Orr,  12  Geo.  137.     Post,  Chap.  XX. 

1  Miller  v.  Thompson,  3  Man.  &  Gr.  576;  Fairchild  v.  Railroad  Company, 
15  N.  Y.  337;  Bulls  v.  Sims,  23  N.  Y.  570,  572;  Clark  v.  Polk  County,  19 
Iowa,  247;  Harvey  v.  W.  P.  S.  Co.  1  Doug.  (Mich.)  193;  Dana  v.  San  Fran- 
cisco, 19  Cal.  486;  Justices  v.  Orr,  12  Geo.  137.  Municipal  certificates  of  in- 
debtedness are  not  "bills  of  credit"  within  the  meaning  of  the  prohibition 
(Art.  1,  Sec.  10)  of  the  National  Constitution :  Baltimore  v.  Board  of  Police, 
15  Md.  376,  1859.  As  a  county  warrant  is  an  instrument  by  which  the  money, 
property,  or  rights  of  a  county  be  affected,  it  is  such  an  one  as  may  be  forged. : 
State  v.  Fenley,  18  Mo.  445,  1853.  Requisites  of  indictment  in  such  a  case : 
76. 

Liability  as  respects  scrip  issued  to  circulate  as  money:  Thomas  v.  Rich- 
mond, 12  Wall.  349,  1870,  and  in  which  the  city  was  held  not  to  be  liable: 
See,  on  this  subject,  Allegheny  City  v.  McClurkan,  14  Pa.  St.  81, 1850; 
Jones  v.  Little  Rock,  25  Ark.  301 ;  Clark  v.  Des  Moines,  19  Iowa,  199, 
1865:  Dively  i).  Cedar  Falls,  21  Iowa,  565;  S.  C.  27  ib.  227. 

2  McCullough  v.  Moss,  5  Denio,  567 ;  Straus  v.  Eagle  Insurance  Company, 
5  Ohio  St.  59 ;  Mott  v.  Hicks,  1  Cow.  513 ;  Attorney  General  v.  Insurance 
Company,  9  Paige,  470;  2  Kent  Com.  299;  1  Parsons  N.  &  B.  165;  Clark  v. 
Des  Moines,  19  Iowa,  212.    Ante,  pp.  126-128. 


396  MUNICIPAL    OOEPOKATIONS.  [CH.  XIV. 

has,  in  some  of  the  cases,  been  applied  to  municipal  corpora- 
tions. The  ordinary  warrants  of  such  corporations,  it  is  clear, 
do  not  cut  off  equities,; and  it  is  at  least  doubtful  how  far  they 
have  the  implied  power  to  make  paper  which  shall  have  this 
effect.     The  adjudged  cases  on  this  point  are  conflicting.1 

1  Kelly  «.  Mayor,  Ac.  4  Hill  (N.  Y.)  263;  Clark  ti.  Des  Moines,  19  Iowa, 
199,  213;  Came  v.  Brigham,  39  Maine,  39 ;  Clarke  v.  School  District,  3  Rh. 
Is.  199;  Goodman  v.  Commissioners,  11  Minn.  31.    Ante,  Sees.  81-83. 

The  ground  has  been  broadly  taken,  that  for  debts  and  obligations  law- 
fully created,  any  corporation,  public  as  well  as  private,  has  the  implied 
authority,  unless  prohibited  by  statute,  charter,  or  by-law,  to  evidence  the 
same  by  the  execution  of  a  bill,  note,  bond,  or  other  contract,  and  to  secure 
the  same  by  a  mortgage,  pledge,  or  other  proper  disposition  of  its  property; 
that  power  to  contract  a  debt  carries  with  it  the  power  to  give  a  suitable 
acknowledgement  of  it ;  and  there  is  no  rule  of  law  in  the  absence  of  a 
statute  limiting  the  length  of  the  credit:  Municipality  v.  McDonough,  2 
Bob.  (La.)  242,  250, 1842;  Barry  v.  Merchants'  Express  Company,  1  Sandf. 
Ch.  280 ;  cited  with  approval  in  Curtis  v.  Leavitt,  15  N.  Y.  9,  62,  and  in 
Smith  v.  Law,  21  N.  Y.  296,  299,  1860 ;  Bank,  &c.  «.  Chilicothe,  7  Ohio,  part 
II.  31,  1836;  Ketchum  v.  Buffalo,  14  N.  Y.  356,  1856,  market  house  bonds 
given  on  twenty-five  years'  time  held  valid,  and  see  cases  cited  on  page  375, 
by  Wright,  J. ;  Douglass  v.  Virginia  City,  5  Nev.  147.  As  to  express  power 
to  issue  bonds,  &c,  see  also  Bank  of  Rome  v.  Village  of  Rome,  18  N.  Y.  38, 
44,  and  cases  cited;  Mills  v.  Gleason,  8  Am.  Law  Reg.  693;  Louisiana  State 
Bank  v.  Orleans  Navigation  Company,  3  La.  An.  294.  State  bonds  negoti- 
able :  Delafi eld  v.  Illinois,  2  Hill,  159.  Power  "  to  borrow  money  "  held  to 
include  power  to  issue  negotiable  bonds  or  other  usual  securities  to  the 
lender:  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496,  511.  Board  of  Super- 
visors of  a  county  have  not  power  to  issue  bill  of  exchange :  Canal  Bank  v. 
Supervisors,  &c.  5  Denio,  517,  1848.  Nor  have  village  trustees :  Lake  v. 
Trustees,  4  Denio,  520.  Corporate  city  has  the  power :  Kelly  v.  Mayor,  4 
Hill,  263;  compare  Clark  i).  Des  Moines,  19  Iowa,  199,  213.  In  Inhabitants, 
&c.  v.  Weir,  9  Ind.  224,  1857,  an  action  against  a  congressional  township 
upon  a  promissory  note  made  by  the  trustees,  the  court,  per  Stuart,  J.  says: 
"There  is  no  power  to  make  notes  conferred  by  the  act  of  1841.  That  act 
was  the  charter  under  which  they  acted.  The  trustees,  as  a  corporation, 
had  no  power  but  such  as  that  act  expressly  conferred,  and  such  as  might 
arise  by  implication,  or  essential  to  the  exercise  of  those  granted.  Such  a 
power  is  always  expressed  even  in  bank  charters.  In  so  limited  a  corpora- 
tion as  a  congressional  township,  the  power  to  make  promissory  notes  could 
hardly  be  implied.  The  case  at  bar  cannot  easily  be  distinguished  in 
principle  from  McClure  v.  Bennett,  1  Blackf.  189,  and  Mean  v.  Graham,  8  ib. 
144." 

Statutory  power  "to  issue  county  orders"  gives  no  authority  to  issue  ne- 
gotiable bonds  payable  at  a  future  day,  with  interest  coupons  attached. 
The  difference  is  substantial:  Goodnow  v.  Commissioners,  11  Minn.  31, 
1865;  County  Commissioners  v.  Carter,  2  Kansas,  115,  1860;  Hull  v.  County, 


CH.  XIV.]  CONTRACTS.  397 

§  408.  Liability  of  Indorser. —  Warrants  or  orders  of  a  mu- 
nicipal corporation  for  the  unconditional  payment  of  money  to 
a  person  named,  or  order,  or  bearer,  have  the  character  of  ne- 
gotiable paper,  so  far,  at  least,  as  to  render  parties  indorsing 
them  liable  as  indorser s.1 

12  Iowa,  142.  Statutory  form  of  county  warrants  held  to  be  directory,  and 
a  mere  departure  from  this  form  is  no  defence  to  an  action  on  the  warrant: 
Young  v.  Camden  County,  19  Mo.  309, 1854.  Authority  to  a  city  to  subscribe 
for  stock  to  be  paid  for  by  "  certificates  of  loan,''  authorizes  it  to  issue  nego- 
tiable bonds  with  coupons  attached — such  "certificates  of  loan"  and 
"bonds"  being  considered  identical:  Amey  v.  Allegheny  City,  24  How. 
(U.S.)  364,  1860;  see  Commonwealth  v.  Pittsburg  (power  "to  borrow 
money")  34  Pa.  St.  496,  511 ;  Same  v.  Same,  41  Pa.  St.  278.  Power  by  public 
corporations  to  issue  negotiable  bonds  may  be  inferred  from  the  power  to 
subscribe  for  stock  and  to  make  payment  for  it:  Curtis  v.  Butler  County, 24 
How.  (U.  S.)  435;  Bushnell  v.  Beloit,  10  Wis.  195.  Express  legislative  au- 
thority to  a  city  to  subscribe  for  stock  in  a  railroad  "as  fully  as  any  indi- 
vidual," authorizes  the  issue,  by  the  city,  of  negotiable  bonds  in  payment 
therefor :  Seybert  v.  Pittsburg,  1  Wall.  (IT.  S.)  272,  1863 ;  approving,  Com- 
monwealth v.  Same,  41  Pa.  St.  278.  By  resolution,  the  council  authorized 
the  mayor  to  borrow  money  of  a  bank  and  execute  the  note  of  the  corpora- 
tion therefor,  instead  of  which  he  executed  the  bond  of  the  corporation 
under  the  seal  of  the  corporation.  In  an  action  on  this  bond  by  the.  payee, 
it  was  held  that  the  corporation  could  plead  rum  est  factum,  since  the  act  of 
the  mayor  in  executing  a  writing  obligatory  instead  of  a  note,  did  not  bind 
the  corporation:  Little  Rock  v.  State  Bank,  3  Eng.  (Ark.)  227;  see  Damon 
v.  Granby,  2  Pick.  345 ;  Randall  v.  Van  Vechten,  19  Johns.  60 ;  Bank  v.  Pat- 
terson, 7  Cranch,  229;  Head  v.  Insurance  Company,  2  ib.  127.  Where 
towns  were  required  "to  purchase"  liquors,  and  the  selectmen  were  indict- 
able if  they  failed  to  make  provision  for  executing  the  law,  it  was  held  that 
a  town  might  give  a  negotiable  note  for  liquors  actually  purchased,  and  that 
the  town  could  not  defend  against  it  in  the  hands  of  a  bona  fide  holder  on 
the  ground  that  the  liquors  were  sold  in  violation  of  the  law  of  the  state : 
Bank  v.  Farmington,  41  N.  H.  32,  1860.  What  an  indorsee  is  bound  to  in- 
quire about,  stated:.  Ib.  42. 

1  Bull  v.  Sims,  23  X.  Y.  570,  1861.  In  this  case  the  action  was  by  an  in- 
dorsee against  the  defendant  as  indorser  of  the  following  instrument :  —     * 

"Milwaukee,  Aug.  1,  1859. 

"The  treasurer  will,  on  or  before  the  1st  day  of  February  next,  pay  to  the 
order  of  E.  Sims,  fifty  dollars,  out  of  any  funds  belonging  to  the  city  not  before 
specially  appropriated,  the  same  having  been  this  day  allowed  for  dredging, 
and  chargeable  to  the  general  city  furid. 

"  R.  R.  Lynch,  Clerk.  H.  L.  Page,  Mayor." 

It  was  held  that  the  defendant  incurred  the  responsibility  of  an  indorser 
of  negotiable  paper,  and  that  the  plaintiff  was  not  bound  to  show  the  exist- 
ence of  sufficient  funds  in  the  city  treasury  to  pay  the  warrants,  and  not 


398  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

§  409.  Payment  and  Cancellation. — Payment  by  the  treas- 
urer or  proper  officer  of  a  municipal  corporation  of  its  orders 
or  warrants  ipso  facto  extinguishes  them.  If  lent,  re-issued,  or 
put  into  circulation  again  by  the  officer,  after  he  has  once  ob- 
tained credit  therefor,  they  are  not  valid  securities,  not  even, 
it  seems,  in  the  hands  of  an  innocent  holder.1 

§  410.  Rights  ami  Remedies  of  holder. — A  creditor  of  a  town 
is  not  bound  to  receive  an  order  on  the  treasurer,  but  may  sue 
upon  his  original  cause  of  action.2  But  if  he  does  receive  it 
be  is  charged  with  the  duty  of  presenting  it  to  the  treasurer, 
upon  whom  it  is  drawn,  or  of  alleging  facts  which  excuse  pre- 
sentment, before  he  can  maintain  an  action  upon  it.  As  such 
an  order  is,  m  effect,  an  order  by  the  debtor  on  himself,  if  pre- 
sented and  payment  be  refused,  the  town  is  liable  instantly, 
and  without  notice  of  non-payment.3 

especially  appropriated  at  the  time  of  its  maturity.  Campbell  v.  Polk 
County,  3  Iowa,  467  ;  Hodges  v.  Shuler,  22  N.  Y.  114 ;  Fairchild  v.  Ogden- 
burgh,  &c.  Railroad  Company,  15  N.  Y.  337.  Compare  as  to  liability  of  in- 
dorser :  Keller  v.  Hicks,  22  Cal.  457. 

1  Canal  Bank  v.  Supervisors,  5  Denio  (N  Y.)  517,  1848.  In  this  case  it 
was  held  that  where,  without  any  fraudulent  intent,  the  holder  of  valid 
county  orders  exchanged  them  with  the  treasurer  for  others  which  were 
in  fact  paid,  but  which  had  never  been  allowed  him  in  his  accounts,  the 
debt  represented  by  the  valid  orders  was  not  extinguished,  and  was  a 
sufficient  consideration  to  support  a  settlement  with  the  county  allowing  it. 
As  to  illegal  orders  in  hands  of  bona  fide  holder :  Halstead  v.  the  Mayor, 
&c.  of  New  York,  3  Comst.  430 ;  affirming,  S.  C.  5  Barb.  218. 

2  Benson  v.  Carmel,  8  Greenl.  112  ;  Willey  v.  Greenfield,  30  Maine,  452, 
1849. 

3  Varner  v.  Nobleborough,  2  Greenl.  121,  where  Mellen,  C.  J.  says :  "  No 
sound  reason  can  be  given  why  a  town  should  be  subjected  to  the  perplexity 
of  costs  of  an  action  before  the  payee  of  an  order  will  do  his  duty  and  re- 
quest the  payment."  "There  is  an  implied  engagement  to  conform  to  es- 
tablished usage,  and  present  the  order  for  payment."  Benson  v.  Carmel, 
supra;  Pease  «.  Cornish,  19  Maine  (1  Appl.),  191,  1841.  As  to  mode  of  pre- 
sentment: Steel  v.  Davis  County,  2  G.  Greene  (Iowa),  469;  Campbell  v. 
Polk  County,  3  Iowa,  467.  Where  the  payee  has  accepted  county  orders 
for  a  debt  against  the  county,  and  has  parted  with  such  orders,  he  cannot 
sue  the  county  for  the  original  debt :  Crawford  County  v.  Wilson,  2  Eng. 
(Ark.)  214, 1846.  See  Allison  v.  Juniata  County,  50  Pa.  St.  351.  An  unpaid 
and  dishonored  warrant  on  the  corporation  treasurer  is  not,  prima  facie,  at 
least,  an  extinguishment  or  novation  of  the  original  debt :  Goldschmidt  v. 
New  Orleans,  5  La.  An.  436 ;  Short  v.  New  Orleans,  4  lb.  281. 


CH.  XIV.J  CONTRACTS.  399 

§  411.  County  and  city  orders  signed  by  the  proper  officers 
are,  prima  facie,  binding  and  legal.  These  officers  will  be  pre- 
sumed to  have  done  their  duty.  Such  orders  make  a  prima 
facie  cause  of  action.  Impeachment  must  come  from  the  de- 
fendant.1 

§  412.  Defences. — A  municipal  corporation  is  not  estopped, 
after  a  warrant  upon  its  treasury  has  been  issued,  to  set  up  the 
defence  of  ultra  vires,  or  fraud,  or  want,  or  failure  of  considera- 
tion.2 And  it  may  maintain  a  bill  in  equity  to  cancel  warrants 
illegally  issued.3 

1  Commissioners  v.  Day,  19  Ind.  450,  1862  ;  9  ib.  359 ;  Commissioners  v. 
Keller,  6  Kansas,  510,  1870  ;  Clark  v.  Des  Moines,  19  Iowa,  211,  1865.  Such 
debts  "  do  not  stand  on  the  footing  of  those  contracted  under  a  special  con- 
ditional grant  of  power:"  19  Ind.  450;  People  v.  Mead,  24  N.  Y.  114.  Ante, 
Chap.  IX.  p.  190,  Sec.  152;  mpra,  Sec.  406. 

2  Thomas  v.  Richmond  (scrip  to  circulate  as  money),  12  Wall.  349,  1870 ; 
Webster  County  v.  Taylor,  19  Iowa,  117,  1865;  Clark  v.  Des  Moines,  ib.  199; 
Clark  v.  Polk  County,  ib.  248 ;  Hodges  v.  Buffalo,  2  Denio,  110 ;  Halstead  v. 
Mayor,  &c.  3  N.  Y.  430 ;  Brown  v.  Utica,  2  Barb.  104 ;  Anthony  v.  Inhabit- 
ants, &c.  1  Met.  286.  The  allowance  of  a  claim  by  a  county  board  is  not  final 
and  conclusive.  Such  allowance  is  prima  facie  evidence  of  the  correctness 
of  the  claim,  "but,"  says  Kingman,  C.  J.,  "the  settlement  of  an  account  by 
the  county  board  is  not  more  sacred  than  a  settlement  made  by  individ- 
uals." The  court  therefore  held,  and  properly  so,  that  the  allowance  of  a 
claim  by  the  county  was  not  an  adjudication  in  the  sense  that  it  would  con- 
clude the  county  as  to  the  amount  allowed  when  sued  upon  the  warrant 
drawn  in  pursuance  of  such  allowance :  Commissioners  v.  Keller,  6  Kansas, 
510,  1870.  Post,  Chap.  XXIII.  Warrants  may,  it  seems,  be  usurious :  Clark 
v.  Des  Moines,  supra. 

3  Pulaski  County  v.  Lincoln,  4  Eng.  (Ark.)  320,  1849 ;  Webster  County  v. 
Taylor  19  Iowa,  117,  1865 ;  Trustees  v.  Cherry,  8  Ohio  St.  564,  1858.  In 
Mississippi  a  board  known  as  the  board  of  police  are  authorized  by  law  to 
audit  and  allow,  upon  due  proof,  all  claims  against  the  county,  and  counties 
in  that  state  cannot  be  sued  directly.  The  action  of  the  board  in  allowing 
claims  for  matters  of  county  charge,  and  in  ordering  warrants  to  issue  there- 
for is  final  and  conclusive  on  the  county,  in  the  absence  of  fraud,  until  it  is 
reversed  or  vacated :  Carroll  v.  Board,  &c.  28  Miss.  (6  Cush.)  38.  1854.  Is- 
suing new  orders  for  old:  Effect  of,  see  Clark  v.  Des  Moines,  19  Iowa,  199 ; 
Canal  Bank  v.  Supervisors,  5  Denio,  517 ;  Lake  v.  Trustees,  4  ib.  520.  On 
warrants  or  orders  the  statute  of  limitations  does  not  begin  to  run  until  pay- 
ment is  denied :  Justices  v.  Orr,  12  Ga.  137, 1852.  See  Carroll  v.  Board,  &c. 
28  Miss.  38  ;  De  Cordova  v.  Galveston  (bonds),  4  Texas,  470 ;  City  v.  Lamson 
(coupons),  9  Wall.  478.    Supra,  406,  note. 


400  MUNICIPAL    CORPORATIONS.  [CH.  XIV. 

§  413.  Payable  out  of  a  particular  fund. — If  by  law  a  particu- 
lar claim  is  to  be  paid  out  of  a  special  fund,  a  warrant  or  order 
issued  therefor  should  be  made  payable  out  of  such  fund ;  if 
made  payable  from  the  treasury  generally  by  the  officers  issu- 
ing it,  the  corporation  is  not  bound  by  their  act.1  An  order 
or  warrant  concluding  with  the  words  "  and  charge  the  same 
to  the  account  of  Union  Avenue,"  is  payable  out  of  the  par- 
ticular fund  indicated,  and  is  not  a  claim  against  the  corpora- 
tion.2 But  the  distinction  must  be  observed  between  orders 
payable  out  of  a  particular  fund,  and  those  which  evidence  a 
general  corporate  liability  but  are  directed  to  be  charged  to  a 
particular  account.3 

§  414.  Interest  on  Corporate  Indebtedness. — The  rule  in  respect 
to  interest  on  debts  against  municipal  corporations,  does  not 
ordinarily   differ   from   that    which    applies    to    individuals.4 

1  County  Commissioners  v.  Cox,  1  Ind.  403,  1855^    Post,  Chap.  XX. 

'  Lake  v.  Trustees,  &c.  4  Denio  (N.  Y.),  520,  1847,  remedy  of  holder  dis- 
cussed ;  distinguished  from  Kelly  v.  Mayor,  &c.  of  Brooklyn,  4  Hill,  263 ; 
and  see  McCullough  v.  Mayor,  &c.  23  Wend.  458 ;  Ciiyler  v.  Rochester,  12 
Wend.  165 ;  Argenti  v.  San  Francisco,  16  Cal.  255,  and  note  remarks  of 
Field,  C.  J. ;  Martin  v.  San  Francisco,  ib.  285.    An  instrument  in  this  form : 

"December  31,  1836. 
"  City  of  Brooklyn,  ss  :    To  the  City  Treasurer  :    Pay  A.  L.  or  order,  $1500, 
for  award  No.  7,  and  charge  to  Bedford  road  assessment,  &c. 

"J.  T.,  Mayor. 

"A.  G.  S.,  Clerk." 
Held,  1st.  Negotiable,  and  not  payable  out  of  any  special  fund.  2nd.  Cor- 
poration was  not  discharged  by  failure  to  present  and  give  notice,  no  dam- 
age or  injury  being  sustained  in  consequence  of  the  omission  :  Kelly  v. 
Mayor,  &c.  4  Hill,  (N.  Y.)  263,  1843 ;  Steel  v.  Davis  County,  2  G.  Greene 
(Iowa),  469;  Campbell  v.  Polk  County,  3  Iowa,  467. 

■'  Clark  v.  Des  Moines,  19  Iowa,  199,  222 ;  Edwards  on  Bills,  143 ;  Pease  v. 
Cornish,  19  Maine,  191 ;  Campbell  v.  Polk  County,  3  Iowa,  467 ;  Commission- 
ers v.  Mason,  9  Ind.  97  ;  Bayergue  v.  San  Francisco,  1  McAll.  C.  C.  R.  175 1 
Bull  v.  Sims,  23  N.  Y.  570;  Montague  v.  Horan,  12  Wis.  599.  In  an  action 
on  a  county  order  payable  out  of  the  three  per  cent  fund,  "as  fast  as  the 
same  shall  accrue  to  the  county,"  it  must  be  alleged  that  the  county  has  re- 
ceived money  from  the  specific  fund  named  applicable  to  the  order  in  suit, 
or  that  the  order  was  fraudulently  drawn  upon  a  fund  in  which  the  county 
had  no  assets :  Commissioners  v.  Mason,  9  Ind.  97,  1857.  See  chapter  on 
Mandamus,  post. 

<■  Langdon  v.  Castleton,  30  Vt.  285,  1858  (action  on  book  account). 


CH.  XIV.]  CONTRACTS.  401 

Under  the  Missouri  statute,  providing  generally  that  creditors 
shall  be  allowed  interest  at  the  rate  of  six  per  cent  per  annum, 
&c,  it  is  held  that  county  warrants  draw  interest  after  present- 
ment to  the  treasury  and  refusal  of  payment  by  the  treasurer, 
the  court  regarding  the  general  statute  as  to  interest  broad 
enough  to  embrace  all  debtors  —  counties  as  well  as  individ- 
uals.1 But  in  Illinois  it  is  held  that  the  debts  of  municipal 
corporations  are  payable  at  the  treasury  of  the  body ;  that  in- 
terest on  coupons  —  that  is,  interest  on  interest  —  cannot  be 
recovered,  unless  there  be  a  special  agreement  to  that  effect, 
since  such  corporations  are  not  named  in  the  act  regulating 
interest.  The  court  remarks :  "Whatever  power  these  cor- 
porations may  possess  to  contract  for  the  payment  of  interest, 
in  the  absence  of  any  express  legislation  on  the  subject,  we  are 
of  opinion  that  their  indebtedness,  in  the  absence  of  such 
agreement,  does  not  bear  interest.  If  such  instruments 
(coupons)  could  in  any  event  draw  interest  without  an  express 
agreement,  it  could  Only  be  after  a  proper  demand  of  payment. 
Until  a  demand  is  made,  such  a  body  is  not  in  default.  They 
are  not  like  individuals  —  bound  to  seek  their  creditors  to 
make  payment  of  their  indebtedness."2 

§  415.  Railroad  Aid  Bonds. —  Course  of  Decision  in  the  United 
States  Supreme  Court. — There  has  been  much  controversy,  as 
heretofore  shown,  in  the  different  states  concerning  the  consti- 
tutional power  of  the  legislature  to  authorize  municipal  and 
public  corporations  to  subscribe  for  stock  in  private  railway 

1  Bobbins  v.  County  Court,  3  Mo.  57,  1831.  In  Iowa,  coupons  on  county 
and  city  bonds  are  held  to  draw  interest:  Rogers  v.  Lee  County,  1  Dillon,  C. 
C.  B.  529.  See  Bailroad  Company  v.  Evansville,  15  Ind.  395 ;  Hollmgsworth 
v.  Detroit,  3  McLean,  472;  Pruyn  v.  Milwaukee,  18  Wis.  367.  If,  under 
authority  to  issue  bonds  with  eight  per  cent  interest,  bonds  be  issued  draw- 
ing twelve  per  cent,  they  are  valid  and  bear  interest  at  the  statutory  rate : 
Quincy  v.  Warn1  eld,  25  111.  317.  May  be  made  payable  out  of  the  state:  Meyer 
v.  Muscatine,  1  Wall.  384;  Maddox  v.  Graham,  2  Met.  (Ky.)  56. 

2  Pekin  v.  Eeynolds,  31  111.  529,  1863;  People  «.  Tazewell  County,  22  111. 
147 ;  Johnson  v.  Stark  County,  24  111.  75.  In  Madison  County  v.  Bartlett,  1 
Scam.  (111.)  67,  it  was  held  that  counties  were  not  liable  to  pay  interest  on 
their  orders  or  warrants,  not  being  named  in  the  statute  regulating  interest, 
and  the  common  law  not  allowing  it  to  be  recovered.  So  in  Pennsylvania; 
Allison  v.  County,  50  Pa.  St.  351.  In  that  state  a  county  is  not  suable  on  its  '- 
warrants,  but  suit  must  be  on  original  claim  :  lb.    Post,  Chap.  XX. 

51 


402  MUNICIPAL   CORPORATIONS.  '  [CH.  XVI. 

companies  and  to  levy  and  collect  taxes  to  pay  indebtedness 
thus  created.1  Respecting  negotiable  bonds  issued  under  legisla- 
tive authority  by  municipalities  for  such  and  kindred  purposes, 
when  in  the  hands  of  bona  fide  holders,  the  Supreme  Court  of 
the  United  States,  influenced,  doubtless,  by  a  keen  sense  of  the 
injustice  and  odium  of  repudiation,  has  at  all  times  displayed 
a  strong  determination  effectually  to  enforce  their  payment. 

§  416.  Accordingly,  it  has  refused  to  follow  the  subsequent 
decisions  of  the  state  court  against  the  validity  of  such  bonds, 
in  cases  where  the  prior  ruling  of  the  state  court  had  been  in 
favor  of  the  power  to  issue  them ; 2  it  has  adopted  liberal  con- 
structions of  statutes  and  charters  authorizing  the  creation  of 

1  Ante,  Chap.  VI.  p.  144.  Since  the  decision  of  the  Supreme  Court  of 
Michigan,  in  the  People  v.  Township  Board  of  Salem,  20  Mich.  452,  S.  C.  9 
Am.  Law  Reg.  (N.  S.)  487,  before  mentioned  {ante,  p.  146,  Sec.  105),  the 
question  arose  in  the  United  States  Circuit  Court  for  the  western  district  of 
Michigan,  in  an  action  on  municipal  railway  aid  bonds,  whether  the  federal 
court  was  concluded  by  the  judgment  of  the  Supreme  Court  of  the  state,  and, 
if  not,  whether  the  holder  of  bonds,  issued  in  full  compliance  with  the 
statute,  could  recover  thereon.  Emmons,  Circuit  Judge,  in  an  elaborate 
opinion,  holds,  as  to  bonds  issued  before  the  decision  of  the  Supreme  Court 
of  the  state,  that  the  federal  courts  are  not  concluded  thereby,  and  that  the 
constitutional  power  of  the  legislature  to  authorize  their  issue,  in  the 
absence  of  special  limitations,  must  be  regarded  as  settled,  at  least  as 
respects  the  federal  tribunals.  The  opinion  displays  great  research  and 
learning,  and  will  be  found  reported  under  the  name  of  Talcott  v.  Township 
of  Pine  Grove,  Vol.  I.  Bench  and  Bar  (N.  S.),  50,  1872.  The  Supreme  Court 
of  Michigan  adheres  to  its  opinion  on  this  subject  in  the  later  case  of  the 
People  v.  State  Treasurer,  not  yet  reported. 

In  Gilchrist  v.  Little  Rock,  1  Dillon,  C.  C.  R.  261,  and  in  Ranlett  v.  Leav- 
enworth, ib.  263,  the  Circuit  Court  of  the  United  States  for  the  eighth  cir- 
cuit, prior  to  any  decisions  of  the  Supreme  Courts  of  the  states  of  Arkansas 
and  Kansas  as  to  the  constitutional  validity  of  municipal  railway  aid  bonds, 
declined  to  pronounce  such  bonds  in  the  hands  of  bona  fide  holders  to  be 
void  for  the  want  of  authority  in  the  state  legislature  to  authorize  their 
issue.  History  of  the  Iowa  municipal  bond  cases :  King  v.  Wilson,  1  Dillon, 
C.  C.  R.  555. 

*  Gelpcke  v.  Dubuque,  1  Wall.  175, 1865;  Havemeyer  v.  Iowa  County,  3  ib. 
294;  Thompson  v.  Lee  County,  ib.  327 ;  Lee  County  v.  Rogers,  7  ib.  181 ;  Butz 
v.  Muscatine,  9  ib.  571 ;  City  v.  Lamson,  9  Wall.  477 ;  Campbell  v.  Kenosha, 
5  Wall.  194,  1866.  Read  last  two  cases  in  connection  with  Foster  v.  Keno- 
sha, 12  Wis.  616,  which,  in  effect,  is  overruled  or  disregarded. 


CH.  XIV.]  CONTRACTS.  403 

such  debts ; *  it  has  given  no  favor  to  defences  based  upon 
mere  irregularities  in  the  issue  of  the  bonds  or  non-compliance 
with  preliminary  requirements,  not  going  to  the  question  of 
power  to  contract ; 2  and  has  held  that  the  Circuit  Courts  of 
the  United  States  were  clothed  with  full  authority,  by  man- 
damus or  otherwise,  to  enforce  the  collection  of  judgments  ren- 
dered therein  on  such  bonds,  and  that  this  authorityicould  not 
in  the  least  be  interfered  with,  either  by  the  legislature  or  the 
judiciary  of  the  states.3  It  has  upheld  and  protected  the  rights 
of  such  creditors  with  a  firm  hand,  disregarding,  at  timesj  it 
would  seem,  principles  which  it  applied  in  other  cases,  and 
asserting  the  jurisdiction  and  authority  of  the  federal  courts 
with  such  striking  energy  and  vigor  as  apparently,  if  not 
actually,  to  trench  upon  the  lawful  rights  of  the  states  and  the 
acknowledged  powers  of  the  state  tribunals;  yet,  upon  the 
whole,  there  is  little  doubt  that  its  course  has  had  the  approval 
of  the  profession  in  general  and  of  the  public,  which  neither 
appreciates  nor  cares  for  fine  distinctions,  and  it  will  be  well 
if  it  shall  teach  municipalities  the  lesson  that  if,  having, 
the  power  to  do  so,  they  issue  negotiable  securities,  they  can- 
not escape  payment  if  these  find  their  way  into  the  hands  of 
innocent  purchasers.  Unfortunately,  the  decisions  on  this  im- 
portant subject  in  the  Supreme  Court  of  the  nation,  and  in 
some  of  the  state  courts,  are  not  in  all  respects  harmonious. 
Wherein  the  courts  agree,  and  wherein  they  differ,  will  most 
satisfactorily  appear  by  referring  to  some  of  the  principal;  ad- 
judications.4 

1  Gelpcke  v.  Dubuque,  supra;  Meyer  i\  Muscatine*  (charter  authorizing- 
borrowing  of  money),  1  Wall.  384;  Rogers  v.  Burlington,  3  ib.  654;  Van 
Hostrup  v.  Madison  City,  1  Wall.  291 ;  Seybert  i?>.  Pittsburg,  1  Wall.  272. 

2  Knox  County  v.  Aspinwall,  21  How.  539  ;■  Mjoran  v.  Commissioners,  2 
Black,  722;  Bissell'v.  Jeffersonville,  24  Hp.w;.  287;  Marsh  v.  Fulton  County, 
10  Wall.  676,  1870. 

s  Von  Hoffman  v.  Quincy,  4  Wall.  535;.  Galena  v,  Amy,  5  ib.  705;  Riggs  v. 
Johnson  County,  6  ib.  166;  ~Bntz,v.  Muscatine,  8  ib.  575.  See,  also,  post, 
Chap.  XX.  on  Mandamus,  and;  cases  there  cited: 

*  The  general  questions  relating  to, the. po^ver. to  aid  railways  is  considered 
in  a  previous  chapter.    A'nte,  Cfyap,  VI;.  p.  144. 


404  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

§  417.     Leading  Cases  in  the  United  States  Supreme  Court  Noticed. 
—  The  case  of  Knox  County  v.  Aspinwall,1  respecting  the  lia- 
bility of  municipal  and  public  corporations  on  their  negotiable 
railway  aid  bonds,  deserves  to  be  particularly  noticed,  as  it  is 
a  leading  case  on  this  subject.     The  action  was  by  a  bona  fide 
holder  for  value  of  certain  coupons  attached  to  bonds  issued 
by  Knox  county,  Indiana,  in  payment  of  a  subscription  to  rail- 
road stock.     The  defence  was  that  the  bonds  were  not  binding 
upon  the  county,  because  the  county  commissioners  possessed 
no  power  to  execute  them.     By  statute,  the  county  commis- 
sioners were  authorized  "to  take  stock  in  the  railroad,  paya- 
ble in  county  bonds,  provided  a  majority  of  the  qualified  voters  "of 
said  county,  at  any  annual  election,  shall  vote  for  the  same," 
The  court  were  of  the  opinion,  and  so  decided,  that  the  county 
commissioners  were  the  proper  judges  whether  or  not  a  major- 
ity of  the  votes  in  the  county  had  been  cast  in  favor  of  the  sub- 
scription to  the  stock,  and  whether  or  not  the  election  had 
been  properly  held,  and  that  these  questions  cannot  be  deter- 
mined collaterally  in  actions  upon  the  bonds  or  coupons.     The 
court,   in  assigning  the  reasons  for  this  holding,   speaking 
through  Mr.  Justice  Nelson,  say :    "  The  right  of  the  board  [of 
county  commissioners]  to  act  in  execution  of  the  authority 
[conferred  by  the  statute]  is  placed  upon  the  fact  that  a  ma- 
jority of  the  votes  had  been  cast  in  favor  of  the  subscription ; 
and  to  have  acted  without  first  ascertaining  it,  would  have 
been  a  clear  violation  of  duty ;  and  the  ascertainment  of  the 
fact  was  necessarily  left  to  the  inquiry  and  judgment  of  the 
board  itself,  as  no  other  tribunal  was  provided  for  the  purpose. 
The  board  was  one,  from  its  organization  and  general  duties, 
fit  and  competent  to  be  the  depository  of  the  trust  thus  con- 
fided to  it.     Th$  persons  composing  it  were  elected  by  the 
county,  and  it  was  already  invested  with  the  highest  functions 
concerning  its  general  police  and  fiscal  interests."     "  "We  do 
not  say,"  he  adds,  "  that  the  decision  of  the  board  would  be 
conclusive  in  a  direct  proceeding  to  inquire  into  the  facts  pre- 
viously to  the  execution  of  the  power,  and  before  the  rights 
and  interests  of  third   parties  had   attached;   but  after  the 
authority  has  been  executed,  the  stock  subscribed,  and  the 

1  Knox  County  v.  Aspinwall,  21  How,  539, 1858, 


Cfl.  XIV.]  CONTRACTS.  405 

bonds  issued  and  in  the  hands  of  innocent  holders,  it  would  be 
too  late,  even  in  a  direct  proceeding,  to  call  it  in  question. 
Much  less  can  it  be  called  in  question  to  the  prejudice  of  a 
bona  fide,  holder  of  the  bonds  in  this  collateral  way."1 

§  418.  The  author  ventures  to  remark  that  he  believes  the 
decision  to  be  right,  and  for  the  reasons  thus  clearly  stated  by 
this  able  and  experienced  judge.  But  as  sustaining  the  decis- 
ion, a  further  position  by  way  of  agument  is  taken  which, 
with  great  deference,  he  considers  to  be  untenable,  of  a  most 
dangerous  nature  and  tendency,  and  plainly  subversive  of  an 
important  principle  in  the  law  of  agency  applicable  both  to 
private  and  public  agents.  That  position  is  this  :  that  a  pur- 
chaser of  the  bonds  had  a  right  to  assume,  from  the  mere  fact 
that  they  were  issued,  that  the  condition  on  which  the  county 
was  authorized  to  issue  them  had  been  complied  with,  and 
that  a  recital  in  the  bonds  that  the  requirements  of  the  law  had 
been  met  amounts  to  an  estoppel  in  pais  upon  the  corporation, 
of  which  the  officers  issuing  the  bonds  were  the  public  agents. 
That  this  is  the  position  assumed  by  the  court,  will  appear  by 
the  following  extract :  "  Another  answer,"  continues  Mr. 
Justice  Nelson  "to  this  ground  of  defence  is,  that  the  purchaser 
of  the  bonds  had  a  right  to  assume  that  the  vote  of  the  county, 
which  was  made  a  condition  to  the  grant  of  the  power,  had 
been  obtained,  from  the  fact  of  the  subscription  by  the  board 
to  the  stock  of  the  railroad  company,  and  the  issuing  of  the 
bonds.  The  bonds,  on  their  face,  import  a  compliance  with 
the  law  under  which  they  were  issued.  '  This  bond,'  we  quote, 
'is  issued  in  part  payment  of  a  subscription  of  $200,000,  by  the 
said  Knox  county,  to  the  capital  stock,  &c.  by  order  of  the 
board  of  commissioners,  in  pursuance  of  the  3d  section  of  the 
act,  &c.  passed  by  the  General  Assembly  of  the  state  of  Indi- 
ana, and  approved  January  15th,  1849.'  The  purchaser  was 
not  bound  to  look  further  for  evidence  of  a  compliance  with  the  condi- 
tions to  the  grant  of  the  power." 2     This  principle  has  been  reiter- 

1  Knox  County  v.  Aspinwall,  21  How.  539,  544. 
»  lb.  545. 


406  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

ated  and  applied  by  the  court  in  subsequent  cases ;  l  but  in  the 
full  extent  here  stated,  it  is  difficult  to  reconcile  it  with  what 
was  necessarily  involved,  as  well  as  what  was  said  in  the  more 
recent  case  of  Marsh  v.  Fulton  County. 

§  419.  The  true  view,  it  is  respectfully  submitted,  is  this : 
Officers  are  the  agents  of  the  corporate  body ;  and  the  ordinary 
rules  and  principles  of  the  law  of  agency  are  applicable  to  their 
acts.  Their  unauthorized  acts  are  not  binding  upon  the  corpor- 
ate body  of  which  they  are  the  public  agents.  Ordinarily,  their 
unauthorized  representation  that  they  have  power  to  do  an 
act  is  not  binding  upon  the  corporation ;  that  is,  the  question 
is  as  to  their  power,  in  fact  and  in  law,  not  what  they  have  rep- 
resented it  to  be.  The  only  exception  to  this  rule  is  where 
both  parties  have  not  equal  means  of  knowledge  as  to  the  ex- 
tent and  scope  of  their  powers,  and  where  the  particular  char- 
acter of  their  commission  and  authority  is,  from  its  nature  and 
circumstances,  peculiarly  known  to  the  officer  or  agent;  in 
which  case  the  principal  will,  or  may,  be  bound  by  the  false 
representations  of  the  agent  respecting  his  authority  and  its 
extent  and  scope ;  but  where  the  authority  to  act  is  solely  con- 
ferred by  statute,  which,  in  effect,  is  the  letter  of  attorney  of 
the  officer,  all  persons  must,  at  their  peril,  see  that  the  act  of 
the  agent  on  which  he  relies  is  within  the  power  under  which 
the  agent  acts ;  and  this  salutary  and  sound  doctrine  seems  to 
be  recognized  by  the  Supreme  Court  of  the  United  States  in 

1  Moran  v.  Miami  County,  2  Black,  722,  724,  1862.  Referring  to  Knox 
County,  v.  Aspinwall,  the  court  observe  that  the  main  defence  was,  that  the 
commissioners  of  the  county  had  no  power  to  execute  the  bonds,  and  hence 
they  were  not  binding  upon  the  county  ;  but  says  the  Supreme  Court  of  the 
United  States,  per  Swayne,  J.,  in  Moran  v.  Miami  County,  supra,  "our  an- 
swer and  judgment  was,  that  the  bonds  on  their  face  import  a  compliance 
with  the  law  under  which  they  were  issued ;  and  that  the  purchasers  of 
them  were  not  bound  to  look  further  for  evidence  of  a  compliance  with  the 
conditions  annexed  to  the  grant  of  power  to  issue  them."  *         *         * 

''  We  think  and  adjudge  that  the  recitals  in  the  bonds  are  conclusive,  con- 
stituting an  estoppel  in  pais  upon  the  defendants  in  this  suit."  (2  Black, 
722,  724,  732.)  As  to  estoppel  in  such  cases:  Rogers  v.  Burlington,  3  Wall. 
654 ;  Cincinnati  v.  Morgan,  ib.  275  ;  Mercer  County  v.  Hacket,  1  ib.  83 ;  Meyer 
v.  Muscatine,  ib.  385,  393,  per  Swayne,  J. ;  Bissell  v.  Jeffersonville,  24  How. 
287  ;  'Gelpcke  v.  Dubuque,  1  Wall.  175,  203 ;  Flagg  v.  Palmyra,  33  Mo.  440. 


CH.  XIV.J  CONTRACTS.  407 

its  most  recent  judgments.1  Accordingly,  bonds  issued  in  vio- 
lation of  an  express  statute  or  constitution  are  void,  though  in 
the  hands  of  innocent  holders,  for  value.2 

§  420.  So  in  a  subsequent  case,  similar  in  character,  the 
common  council  of.  a  city  were,  by  virtue  of  various  statutes, 
authorized  to  subscribe  for  stock  in  a  railroad  company,  and 
to  issue  bonds  in  payment  therefor  on  the  petition  of  three-fourths 
of  the  legal  voters  of  the  city.  Before  the  issue  of  the  bonds,  the 
council  decided  that  three-fourths  of  the  citizens  had  peti- 
tioned, and  the  bonds  themselves  thus  recited.  The  Supreme 
Court  of  the  United  States  held  that  the  council  was  the  tribu- 
nal to  decide  whether  the  requisite  number  had  petitioned; 
that  it  was  contemplated  that  this  question,  which  was  one  of 
fact,  should  be  ascertained  and  conclusively  settled  prior  to  the 
issue  of  the  bonds;  and  that  when  sued  upon  the  bonds  by  in- 
nocent holders  for  value,  parol  testimony  was  inadmissible  to 
show  that  the  petitioners  did  not  constitute  three-fourths  of  the 
legal  voters  of  the  city.3 

1  The  Floyd  Acceptances,  7  Wall.  666,  1868 ;  Marsh  v.  Fulton  County,  10 
Wall.  676,  1870.  See,  also,  Clark  v.  Des  Moines,  19  Iowa,  199,  210,  1865 ; 
Treadwell  v.  Commissioners,  11  Ohio  St.  183,  1860,  reviewing  and  criticising 
Knox  County  v.  Aspinwall,  21  How.  539.  See,  also,  Gould  v.  Sterling  (action 
on  bonds),  23  N.  Y.  464 ;  S.  C.  1  Am.  Law  Eeg.  (N.  S.)  290,  and  note  of 
Prof.  Dmght;  Starin  v.  Genoa,  23  N.  Y.  452  ;  People  V.  Mead,  36  N.  Y.  224. 
United  States  v.  City  Eank  of  Columbus,  21  How.  356,  1858,  is  a  very 
striking  illustration  of  the  general  principle  that  a  corporate  officer  cannot 
bind  the  corporation  by  his  unauthorized  acts  or  representations  concern- 
ing the  authority  of  himself  or  others  :  De  Voss  v.  Richmond,  7  Am.  Law 
Reg.  (N.  S.)  589;  S.  C.  18  Gratt.  (Va.)  338,  1868. 

2  Aspinwall  v.  County  of  Daviess,  22  How.  1859 ;  Marsh  v.  Fulton  County, 
supra. 

3  Bissell  v.  Jeffersonville,  24  How.  (U.  S.)  287,  1860,  approving  Knox 
County  v.  Aspinwall,  21  How.  539;  S.  P.  Railroad  Company  v.  Evansville, 
15  Ind.  395,  1860.  This  is  clearly  right,  because,  according  to  the  rule  be- 
fore stated,  the  fact  was  one  not  of  a  nature  to  be  ascertained  by  purchasers 
in  the  market  to  whom  the  bonds  were  designed  to  be  sold.  As  to  proceed- 
ings preliminary  to  issuing  of  bonds:  Ante,  p.  149;  Commissioners  v.  Nichols, 
14  Ohio  St.  260;  Achison  v.  Butcher,  3  Kansas,  304, 1865;  Mercer  County  v. 
Hacket,  1  Wall.  83;  Rogers  v.  Burlington,  3  ib.  654;  Moran  v.  Miami  Co.  2 
Black,  722;  Flagg  v.  Palmyra,  33  Mo.  440;  Commonwealth  v.  Commission- 
ers, &c.  37  Pa.  St.  237 ;  compare,  Marsh  v.  Fulton  County,  10  Wall.  676, 1870 ; 
Treadwell  v.  Commissioners,  11  Ohio  St.  183, 1860.    Post,  Sec.  423. 


408  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

§  421.  In  another  case,1  the  action  was  upon  coupons  pay- 
able to  bearer  belonging  to  negotiable  bonds  issued  by  a 
county  in  payment  of  stock  subscribed  in  a  railroad  company. 
By  an  act  of  assembly,  the  county  commissioners  were  author- 
ized to  subscribe  the  stock  and  issue  the  bonds  only  upon  the 
following  "restrictions,  limitations,  and  conditions,  and  in  no 
other  manner  or  way  whatever : "  1.  "  After,  and  not  before, 
the  amount  of  such  subscription  shall  have  been  designated, 
advised,  and  recommended  by  a  grand  jury  of  the  county." 
2.  Said  "bonds  shall,  in  no  case,  be  sold  by  the  railroad  com- 
pany less  than  par."  3.  That  the  acceptance  of  this  act  shall 
be  deemed  the  acceptance  of  another  act  fixing  the  gauges  of 
railroads  in  the  county  of  Erie.  The  plaintiff  was  a  bona  fide 
holder,  for  value  of  a  number  of  the  bonds  issued  by  the  coun- 
ty. To  defeat  a  recovery,  the  county  on  the  trial  offered  to 
show,  not  that  no  recommendation  by  a  grand  jury  was  ever 
made,  but  that  no  such  recommendation  was  made  as  the  act 

A  city  was  authorized  to  take  stock  in  a  railroad  company  "  on  the  peti- 
tion of  two- thirds  of  the  citizens,  who  are  freeholders,"  &c.  Bonds  of  the 
city  were  duly  issued,  signed  by  the  proper  officers  and  attested  by  the  seal 
of  the  city,  and  on  their  face  recited  that  they  were  issued  by  virtue  of  an 
ordinance  of  the  city  making  the  subscription.  The  minutes  of  the  city 
council  simply  stated  that  "the  freeholders  of  the  city,  with  great  unanimity, 
had  petitioned,"  &c.  It  was  held  that  the  city  council  were  the  proper 
judges  whether  or  not  the  required  number  had  petitioned,  and  that  the 
city,  as  against  bona  fide  holders  for  value,  was  "concluded"  by  the  ordi- 
nance "  as  to  any  irregularities  that  may  have  existed  in  carrying  into. ex- 
ecution the  power  granted  to  subscribe  the  stock  and  issue  the  bonds : "  Van 
Hostrup  v.  Madison  City,  1  Wall.  (U.  S.)  291, 1863;  S.P.  Meyer  v.  Muscatine 
(where  charter  required  "a  majority  of  two-thirds  of  the  votes  given")  ib. 
384,  393;  Aurora  v.  West,.  22  Ind.  88,  1864;  contra,  People  v.  Mead,  36  N.  Y. 
224. 

Where  the  act  authorizing  a  municipality  to  issue  bonds  was  not  to  take 
effect  until  "approved  by  two-thirds  of  the  electors  present  at  a  city  meet- 
ing held  for  that  purpose,  and  a  copy  of  its  doings  lodged  in  the  office  of  the 
secretary  of  state; ''  bona  fide  purchasers  of  such  bonds  are  not  bound  to  look 
beyond  the  certificate  thus  lodged,  and  are  not  affected  by  the  action  of  the 
city,  refusing  at  prior  meetings  to  approve  the  act:  Society  for  Savings  v. 
New  London,  29  Conn.  174,  1860. 

Fraud  in  the  election  authorizing  the  subscription  must  be  set  up  before 
rights  have  accrued :  Butler  v.  Dunham,  27  111.  474 ;  People  v.  Supervisors, 
27  Cal.  655.  Further  as  to  the  construction  of  powers  to  aid  in  the  building  of 
railways,  see  ante,  Chap.  VI.  p.  144.  >' 

1  Mercer  County  v.  Hacket,  1  Wall.  83,  1863. 


CH.  XI.V.]  CONTRACTS.  409 

required.  The  following  was  the  recommendation:  The 
grand  jury  "would  recommend  (omitting  the  words  'desig- 
nate and  advise')  the  commissioners  of  Mercer  county  to  sub- 
scribe an  amount  not  exceeding  $150,000,"^-but  not  other- 
wise designating  the  amount.  The  bonds  referred  on  their 
face  to  the  act  of  assembly  and  its  date  which  authorized  their 
issue,  and  recited  that  they  were  issued  in  pursuance  thereof. 
This  was  regarded  by  the  court  not  as  an  offer  to  show  "that 
no  law  exists  to  authorize  their  issue,  but  as  one  to  show  that 
the  recitals  in  the  bonds  are  not  true,  and  to  show  that  they 
were  not  made  '  in  pursuance  of  the  acts  of  assembly'  authoriz- 
ing them; "  and  following  Knox  County  v.  Aspinwall,1  it  was 
adjudged  that  the  matters  thus  offered  to  be  shown  constituted 
no  defence  against  a  bona  fide  holder,  on  the  principle  that 
"where  bonds  on  their  face  import  a  compliance  with  the  law 
under  which  they  were  issued,  the  purchaser  is  not  bound  to 
look  further."  And  following  Woods  v.  Laurence  County,2 
it  was  also  ruled  that  it  was  no  defence  against  such  a  holder, 
that  the  bonds  were  sold  by  the  railroad  company  less  than 
par,  they  being  negotiable  and  the  plaintiff  innocent.  And  it 
was  also  decided  that  the  acceptance  by  the  railroad  company 
of  the  bonds  authorized  by  the  act,  operated ^?er  se  as  an  accept- 
ance of  the  gauge  law. 

§  422.  In  another  case,  authority  to  a  city  "to  take  stock  in 
any  chartered  company  for  making  a  road,  or  r'oads,  to  the  said 
city,"  was  held  in  favor  of  a  bona  fide  purchaser  of  its  bonds, 
to  authorize  it  to  subscribe  to  a  railroad  which,  by  the  terms 
of  its  charter,  and  in  fact,  did  not  terminate  at  said  city^  but 
whose  nearest  terminus  was  forty-six  miles  distant,  it  appear- 
ing that  there  was,  at  the  time  of  said  subscription,  another 
railroad  leading  from"  that  terminus  to  the  city.3 

1  Knox  County  «.  Aspinwall,  21  How.  539. 

2  Woods  v.  Laurence  County,  1  Black.  386. 

3  Van  Hostrup  v. Madison  City,  1  Wall.  (U.  S.)  291,  1863;  see  Aurora  v. 
West,  9.1nd.  74;  S.  C.  22  ib.  88,  96,  503.  The  decision  in  Van  Hostrup  v. 
Madison  City,  supra,  was  doubtless  influenced  by  a  natural  desire  to  protect 
the  holders  of  the  bonds.  If  the  question  had  been  one  between  the  city 
and  the  railroad  company,  we  doubt  the  correctness  of  the  proposition  that 
the  Columbus  and  Shelby  road,  distant  and  between  different  points,  was 

52 


410  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

'  §  423.  State  Court  Decisions  Referred  to. — The  authority  to 
subscribe  to  the  stock  of  a  xailroad  corporation  may  be  made 
conditional  on  certain  previous  steps  being  taken,  as,  for  exam- 
ple, a  prior  authorisation  of  the  act  by  a  majority  of  the  quali- 
fied voters  of  the  municipality  or  district  to  be  affected,  or  a 
recommendation  in  its  favor  and.  a  designation  of  the  amount 
by  a  grand  jury,  and  the  statute  may  be  so  framed  as  to  evince 
the  legislative  intention  to  be,  that  no  power  to  subscribe  or 
issue  bonds  shall  exist  unless  this  be  done.1  Thus,  where 
the  act  authorizing  a  town  to  borrow  money  to  pay  for  the 
stock  subscribed  expressly  provided  that  the  oflicers  thereof 
should  "have  no  ;power"  to  do  so  until  the  written  assent  of' 

a  road  leading  to  Madison.  In  construing  the  language,  "  road,  or  roads,"  to 
said  city,  Nelson,  J.,  says:  "We  think  it  quite  clear,a  subscription  to  a  road 
wholly  unconnected  With  roads  leading  to  the  city  would  not  be  within  the 
fair  meaning  and  intent  of  the  charter;  but  are  equally  satisfied  that  a  sub- 
scription to  a  road:  in  extension  and  prolongation  of  one  leading  into  the  city 
is  within  it." 

1  Mercer  County  v.  Pittsburg  &  Erie  Eailroad  Company,  27  Pa.  St.  389, 
1856;  Mercer  County  v..  Hacket,  1  Wall.  83;  Aurora  v.  West,  22  Ind.  88, 503, 
1864.  Ante,  Chap.  VI.  p.  144.  City  and  County  of  St.  Louis  v.  Alexander, 
23  Mo.  483, 1856.  In  this  last  case,  the  provision  requiring  a  submission  of 
the  question  to  the  voters  "before  the  subscription  hereby  authorized  shall 
be  made,"  was  held  not  merely  directory,  but  mandatory.  Where  the  en- 
abling act  requires  the  amount  to  be  specified,  a  vote  not  specifying  defi- 
nitely the  amount  is  void:  State  v.  Saline  County,  45  Mo.  242, 1870;  follow- 
ing, Mercer  County  v.  Pittsburg,  &c.  Eailroad  Company,  27  Pa.  St.  389,  and 
Starin  v.  Genoa,  27  N.  Y.  439  (see  infra),  and  distinguishing  Knox  County  v. 
Aspinwall,  21  How.  539j  and  Flagg  v.  Palmyra,  33  Mo.  440 ;  Trustees  v. 
Cherry,  8  Ohio  St.  564;  and  see  Railroad  Company  v.  Platte  County,  42  Mo.. 
171,  where  permissive  words  respecting  an  election  to  authorize  subscrip- 
tion were  held  to  be  imperative.  In  the  Eailroad  Company  v.  Buchanan 
County,  39  Mo.  485,'  the  words  that  the  County  Court,  after '  an  affirmative 
vote' by  the  people,  "shall  have  power  to  subscribe,''  were  held  to  leave  it 
discretionary  with  the  court  whether  to  subscribe,  or  not.  In  the  case  of 
the  People  ex  rel.  v.  Tazwell  County,  22  111.  147,  it  was  held,  under  the  gen- 
eral law  of  the  state,  that  it  was  discretionary  whether  the  county  should 
subscribe  all  or  but  a  portion  of  the  amount  voted  by  the  citizens,  and  that 
the  county  authorities  might  impose  any  proper  conditions  they  might 
choose.  So  where  the  legislature,  without  conditions,  provides  for  submit- 
ting the  question  of  subscription  to  the  voters  of  a  township,  the  electors 
have  the  power  to  vote  to  subscribe  on  any  conditions  they  may  see  proper 
to  annex:  '  People  v.  Dutcher,  111.  Sup.  Court,  May,  1871;  see  also  People  v. 
Logan  County,  45  111.  139;  Veeder  v.  Lima,  19  Wis.  280,  1865.  Post,  Chap. 
XX.  .      ,  ,    ! 


CH.  XIV.]  CONTRACTS.  411 

two-thirds  of  the  resident  tax  payers  had  been  obtained,  this 
was  held  a  condition  precedent,  without  which  the  power  did 
not  exist.1 

§  424.  So,  under  an  act  providing  "that  no  subscription  or 
purchase  of  stock  shall  be  made,  or  bonds  issued,  by  any 
county  or  city,  creating  a  debt  for  the  payment  of  such  sub- 
scription, unless  a  majority  of  the  qualified  voters  of;  the1  'County 
or  city  shall  vote  for  the  same,"  it  was  held  that  'bonds  issued 
without  an  election,  or  where  the  election  was  called  by  the 
wrong  authority  (as  by  the  county  court  instead  of  the  county 

1  Starin  v.  Genoa,  23  N.  Y.  439,  1861;.,. Gould  v.  Sterling,;*.  439,  4.56;  disr 
tinguished,  on  this  point,  from  Bank  of  Rome  pf.  Village  pjf  Rome?  19,  N.  Y, 
20.  Under  the  act  it  was  held  that  the  onus  was  on  the  plaintiff  to  show 
affirmatively  the  written  assent  of  the  requisite  number  of  tax  payers;  and 
the  manner  in  which  this  must  be  shown  is  considered  at  length. :  But 
see  Bissell  v.  Jeffersonville,  24  How.  287 ;  Knox  County  v.  Aspinwall,  21 
How.  539 ;  Mercer  County  v.  Hacket,  1  Wall.  83,  heretofore  referred  te>,  In 
the  People  v.  Mead,  36  N.  Y.  224, 1867',  the  decision,  in.  Starin  v.  Genoa,  and 
Gould  v.  Sterling,  above  cited,- was  adhered  to.  by  the  Court  of  Appeals, 
though  it  was  admitted  that  a  contrary  ruling  as  to  the.  evidence  of  the  as- 
sent of  the  tax  payerSj  had  been  made  by  the  Supreme;Court  of  the  United 
States  in  favor  of  similar  bonds  in  the  hands,  of  bona  fide  holders,  audi  the 
case  was  distinguished  from  Murdock.i*.  Aiken,  and  Boss.  v.  Curtis,  31.  N.  Y, 
606i  Illustrating  text,  see  Benson  v.  Mayor,  &c.  of  Albany,,  24  Barb.  248,. 
By  its  charter  a  city  was  authorized  to  take  stock  in  railroads,!  "provided;, 
that  no  stock  shall  be  subscribed, or  taken,  by  the  common  council,  unless 
upon  the  petition  of  two-thirds  of  the  residents  of  said  city,  who  are  free- 
holders of  said  city."  It  was  held,  in  an  action, by  the  railroad  company 
against  the  city  on  the  contract  of  subscription,  that  it  was  the  duty  of  the 
common  council  to  determine  whether  the  requisite  number  of  the  free- 
holders of  the  city  had  petitioned  for  the  subscription,  no  other,  tribunal 
having  been  provided  for  that  purpose;  and  .having  passed  upon  that  ques- 
ion, 'their  determination  is  conclusive,  unless  it  may  be  set  aside  in  some 
direct,  proceeding' for  that  purpose:  Railroad  Company  v.  Evansyille,  15 
Ind.  395,  I860;  following  and  applying,  Knox  County  v.  Aspinwall,  21  HOW;-. 
539;  see,  also,  Bissell  v.  Jeffersonville,.  24  How.  287, 1860;  Mercer  County 
v.  Hacket,  1  Wall.  83;  compare,  however,  Veeder  v.  Lima,  19  Wis,  280,1865 ; 
Duanesburg  v.  Jenkins,  40  Barb.  574 ;  Society,  &c,  v.  New  London,  29  Conn. 
174;  State  v.  Saline  County,  45  Mo.  242,  1870.  Subscriptions  to  turnpike 
roads  by  the  county  judge,  under  acts  of  the  legislature,  were  held  un- 
authorized and  void,  it  being  admitted  that  an  amount  of  stock  sufficient, 
with  the  aid  of  county  subscriptions,  to  complete  each  mile  of  road,  had 
not  been  taken  by  private  subscription,  as  required  by  the  statutes :  Clay  v. 
County,  4  Bush  (Ky.)  154. 


412  MUNICIPAL    CORPORATIONS.  [CH.  XIV. 

board  of  supervisors),  are  void,  for  want  of  power  to  issue  them, 
in  whose  hands  soever  they  may  be,  and  are  not  validated  by 
the  levy  of  taxes  and  the  payment  of  interest  thereon.1 

§  425.  In  a  case  in  Ohio,  where  the  legislature  authorized 
"the  county  commissioners  of  any  county  through  or  in  which  a 
railroad  might  be  located,  to  subscribe  to  the  capital  stock  of 
the  said  company,"  and,  for  the  purpose  of  paying  therefor, 
"  to  borrow  the  necessary  amount  of  money,  for  which  they 
shall  issue  their  negotiable  bonds,"  &c,  it  was  decided  to  be  a 
defence  to  an  action  on  the  bonds  (though  by  a  bona  fide 
holder),  that  the  railroad  was  "never  made  or  located  through 
or  in  the  county ; "  that  it  was  "located  and  completed  so  as 
not  to  touch  the  county."  The  defence  was  held  good,  upon 
the  obvious  ground  that  the  authority  to  issue  the  bonds  never 
existed.2 

1  Marshall  County  v.  Cook,  38  111.  44, 1865,  commenting  on  and  distin- 
guishing, Mercer  County  v.  Hackett,  1  Wall.  83,  and  Gelpcke  v.  Dubuque,  ib. 
175.  See,  also,  Shoemaker  v.  Goshen,  14  Ohio  St.  569;  Berliner  v.  Waterloo, 
14  Wis.  378;  Veeder  v.  Lima,  19  Wis.  280,  1865;  S.  P;  as  to  ratification, 
Marsh  v.  Fulton  County,  10  Wall.  676, 1870.  The  corporation  is  estopped — 
■where  the  power  to  issue  existed — from  setting  up  irregularities  in  the 
issue  of  the  bonds,  after  repeated  payments  of  interest  thereon :  Keithsburg 
v.  Frick,  34111.  405;  Railroad  Company  v.  Marion  County,  36  Mo.  294;  Mer- 
cer County  v.  Hubbard,  45  111.  139.  The  municipal  authorities,  on  man- 
damus or  other  proceedings  to  compel  them  to  make  subscription  to  the 
railroad  company,  may  .show  that  the  election  was  influenced  by  it  and  its 
employes,  by  bribery  and  corruption:  Peoples.  Supervisors,  27  Cal.  655, 
1865;  Butler  v.  Dunham,  27  111.  474.    Post,  Chap.  XX. 

Defective  subscriptions  may,  of  course,  be  ratified  by  the  legislature  in  all  cases 
where  the  legislature  could  originally  have  conferred  the  power:  Keiths- 
burg v.  Frick,  supra;  Copes  v.  Charleston,  10  Rich.  (So.  Car.)  Law,  491;  Mc- 
Millen  v.  Boyles,  6  Iowa,  304;  ib.  394;  Gelpcke  v.  Dubuque,  1  Wall.  220 
(note  statute  there  construed) ;  People  v.  Mitchell,  35  N.  Y.  551 ;  Thompson 
v.  Lee  County,  3  Wall.  327;  Bass  v.  Columbus,  30  Geo.  845,  1860;  City  v. 
Lamson,  9  Wall.  477,  1869.    Ante,  pp.  88-90. 

2  Treadwell  v.  Commissioners,  11  Ohio  St.  183,  1860,  reviewing  and  criti- 
cising, Aspinwall  v.  Commissioners  of  Knox  County,  21  How.  (U.  S.)  539, 
approved  in  Bissell  v.  Jeffersonville,  24  How.  (U.  S.)  287,  1860.  In  Veeder 
v.  Lima,  19  Wis.  280,  1865,  Treadwell  v.  Commissioners  and  Gould  v.  Sterling, 
before  cited,  are  approved,  and  Aspinwall  v.  Commissioners  and  Moran  v. 
Miami  County  are  criticised.  Compare,  State,  &c.  v.  Van  Home,  7  Ohio  St. 
327;  re-affirmed,  State  v.  Trustees,  &c.  8  Ohio  St.  394,  401.  The  two  cases 
last  cited  (7  Ohio  St.  327,  8  ib.  394),  do  not  intend,  probably,  to  assert  the 


CH.  XIV.]  CONTRACTS.  413 

§  426.  It  may  be  remarked,  in  conclusion,  that  this  general 
survey  of  the  adjudications  shows  some  difference  of  judicial 
opinion  (chiefly  in  cases  involving  the  rights  of  innocent  hold- 
ers of  negotiable  municipal  securities)  respecting  the  evidence 
of  the  compliance  with  conditions  precedent,  and  as  to  what 
will  estop  the  municipality  from  showing  a  non-compliance  in 
fact  with  such  conditions.  Yet,  aside  from  these  differences, 
the  courts  all  agree  that  such  a  corporation  may  successfully 
defend  against  the  bonds  in  whosesoever  hands  they  may  be, 
if  its  officers  or  agents,  who  assumed  to  issue  them,  had  no 
-power  to  do  so.1  The  officers  of  such  corporations  possess  no 
general  power  to  bind  them,  and  have  no  authority  except 
such  as  the  legislature  confers.  If  the  statute  authorizes  such 
a  corporation  to  issue  its  bonds  only  when  the  measure  is  sanc- 
tioned by  a  majority  of  the  voters,  bonds  issued  without  such 
a  sanction  (either  in  fact  or  according  to  the  decision  of  some 
authorized  body  or  tribunal),  or  when  voted  to  one  corporation 
and  issued  to  another,  are  void,  into  whosesoever  hands  they 
may  come.2  This  is  the  sound  and  true  rule  of  law  on  this 
subject,  and  the  one  which  has  had  the  almost  uniform  ap- 
proval of  the  state  courts  in  this  country,  and  has  recently  re- 
ceived the  high  sanction  of  the  Supreme  Court  of  the  United 

principle  that  the  non-action  of  the  tax-payers  or  inhabitants  will  supply  a 
want  of  power,  in  the  just  sense  of  that  expression,  in  the  trustees  to  sub- 
scribe for  the  stock,  or  estop  the  quasi  corporation  from  making  the  defence 
of  ultra  vires,  if  it  existed. 

1  Ante,  Chap.  VI.  p.  149,  Sec.  108.  The  provisions  of  a  railroad  charter 
made  it  lawful  for  certain  counties  to  subscribe  stock  on  a  majority  vote, 
and,  on  such  vote  being  had,  made  it  the  duty  of  the  county  commissioners 
to  subscribe  for  stock  and  issue  bonds  therefor.  Accordingly  a  vote  was 
had,  resulting  in  favor  of  the  subscription ;  after  the  vote,  but  before  the  sub- 
scription was  actually  made  and  the  bonds  issued,  counties  were  prohibited 
by  law  from  subscribing  for  stock,  unless  paid  for  in  cash:  Held,  that  the 
power  to  subscribe  and  the  vote  did  not  constitute  a  contract  within  the 
meaning  of  the  clause  of  the  constitution  making  contracts  inviolable ;  that 
.until  the  subscription  was  actually  made  the  Gontract  was  unexecuted,  and 
that  bonds  thus  issued  were  void,  even  in  the  hands  of  innocent  holders  for 
value:  Aspinwall  v.  County  of  Jo  Daviess,  22  How.  (U.  3.)  364,  1859.  Ante, 
p.  88,  Sec.  42. 

2  Ante,  Chap.  VI.  p.  149. 


414  MUNICIPAL   CORPORATIONS.  [CH.  XIV. 

States.1  The  distinction,  however,  must  be  observed  between 
want  of  power  to  issue  the  bonds  and  irregularities  in  the 
exercise  of  the  power,  which  are  unavailing  against  the  bona 
fide  holder,  without  notice  of  the  irregularity. 

1  Marsh  v.  Fulton  County,  10  Wall.  676,  1870.  Speaking  of  this  subject, 
Mr.  Justice  Field,  in  the  case  just  cited,  delivering  the  opinion  of  the  Court, 
says :  "  But  it  is  earnestly  contended  that  the  plaintiff  was  an  innocent 
purchaser  of  the  bonds,  without  notice  of  their  invalidity.  If  such  were 
the  fact,  we  do  not  perceive  how  it  could  affect  the  liability  of  the  county 
of  Fulton.  This  is  not  a  case  where  the  party  executing  the  instruments 
possessed  a  general  capacity  to  contract,  and  where  the  instruments  might, 
for  such  reason,  be  taken  without  special  inquiry  into  their  validity.  It  is 
a  case  where  the  power  to  contract  never  existed — where  the  instruments 
might,  with  equal  authority,  have  been  issued  by  any  other  citizen  of  the 
county.  It  is  a  case,  too,  where  the  holder  was  bound  to  look  to  the  action 
of  the  officers  of  the  county  and  ascertain  whether  the  law  had  been  so  far 
followed  by  them  as  to  justify  the  issue  of  the  bonds.  The  authority  to 
contract  must  exist  before  any  protection  as  innocent  purchaser  can  be 
claimed  by  the  holder.  This  is  the  law  even  as  respects  commercial  paper, 
alleged  to  have  been  issued  under  a  delegated  authority,  and  is  stated  in 
the  case  of  Floyd  Acceptances  (7  Wall.  666).  In  speaking  of  notes  and  bills 
issued  or  accepted  by  an  agent,  acting  under  a  general  or  special  power,  the 
court  says:  'In  each  case  the  person  dealing  with  the  agent,  knowing  that 
he  acts  only  by  virtue  of  a  delegated  power,  must,  at  his  peril,  see  that  the 
paper  on  which  he  relies  comes  within  the  power  under  which  the  agent 
acts.  And  this  applies  to  every  person  who  takes  the  paper  afterwards ;  for 
it  is  to  be  kept  in  mind  that  the  protection  which  commercial  usage  throws 
around  negotiable  paper  cannot  be  used  to  establish  the  authority  by  which 
it  was  originally  issued.' "  And  in  this  case  the  bonds  of  the  county  of 
Fulton,  though  negotiable  in  form,  and  not  disclosing  or  reciting  their  pur- 
pose or  origin,  were  held  void,  in  the  hands  of  bona  fide  holders,  for  want 
of  authority  in  the  county  to  issue  them — having  been  voted  to  one  cor- 
poration and  delivered  to  (according  to  the  view  of  the  court)  another  and 
distinct  corporation.  See  Society,  &c.  v.  New  London,  29  Conn.  174;  com- 
pare, People  v.  Mead,  36  N.  Y.  224 ;  Adams  v.  Railroad  Company,  2  Coldw. 
(Tenn.)  645. 

Defences  grounded  on  corporate  neglect,  or  technical  in  their  nature,  are 
not  favored  when  the  bonds  are  in  innocent  ha^nds :  Maddox  v.  Graham,  2 
Met.  (Ky.)  56 ;  Commonwealth  v.  Pittsburgh,  43  Pa.  St.  391.  The  issue  of  the 
bonds  proves  that  conditions  "precedent,  imposed  by  ordinance,  have  been 
complied  with  or  waived:  Commonwealth  v.  Pittsburgh,  supra;  Gilchrist  v. 
Little  Rock,  1  Dillon,  C.  C.  261. 

The  Supreme  Court  of  the  United  States  has  very  recently  held,  in  an 
action  on  negotiable  bonds  issued  by  a  public  corporation,  that  where  the 
defendant  has  shown  fraud  in  the  origin  or  inception  of  the  instruments,  this 
will  throw  upon  the  holder  the  burden  of  showing  that  he  gave  value 
for  them  before  maturity :  Smith  v.  Sac  County,  11  Wall.  139, 1870,  Clifford, 
[.,  dissenting. 


CH.  XV.]  CORPORATE  PROPERTY.  415 


CHAPTER  XV. 

Corporate    Property. 

§  427.  We  have,  next  to  consider  the  powers  of  municipal 
corporations  relating  to  property.1  The  history  of  the  capacity 
of  such  corporations  to  acquire  and  hold  property  is  so  clearly 
given  by  Mr.  Justice  Campbell,  in  his  learned  judgment,  in  the 
great  McDonough  "Will  Case,2  in  the  Supreme  Court  of  the 
United  States,  that  it  fittingly  serves  as  an  introduction  to  the 
more  special  discussion  and  treatment  of  the  subject.  Civil 
Law  :  "The  Roman  jurisprudence,"  he  observes,  "seems  orig- 
inally to  have  denied  to  cities  a  capacity  to  inherit,  or  even  to 
take  by  donation  or  legacy.  They  were  treated  as  composed 
of  uncertain  persons,  who  could  not  perform  the  acts  of  voli- 
tion and  personalty  involved  in  the  acceptance  of  a  succession. 
The  disability  was  removed  by  the  Emperor  Adrian  in  re- 
gard to  donations  and  legacies,  and  soon  legacies  ad  ornatiim 
civitatis  and  ad  honorem  civitatis  became  frequent.  Legacies  for 
the  relief  of  the  poor,  aged,  and  helpless,  and  for  the  education 
of  children,  were  ranked  of  the  latter  class.  This  capacity  was 
enlarged  by  the  Christian  Emperors,  and  after  the  time  of  Jus- 
tinian there  was  no  impediment.  Donations  for  charitable 
uses  were  then  favored;  and  this  favorable  legislation  was  dif- 
fused" oyer  Europe  by  the  canon  law,  so  that  it  became  the 
common  law  of  Christendom." 

§  428.  Subsequent  Modification  in  Em  ope.—"  When  the  power 
of  the  clergy  began  to  arouse  the  jealousy  of  the  temporal  au- 
thority, and  it  became  a  policy  to  check  their  influence  and 
wealth — they  being,  for  the  most  part,  the  managers  of  the 

1  Extent  of  legislative  authority  over  the  property  of  municipal  and  public- 
corporations  :    Ante,  Chap.  IV. 

2  McDonough  Will  Case,  15  How.  367,  403, 1853.  The  nature  of  Mr.  Mc- 
Donough's  will,  in  favor  of  the  cities  of  New  Orleans  and  Baltimore,  will  be 
found  stated  further  on  in  this  chapter. 


416  MUNICIPAL   CORPORATIONS.  i[.CH.  XV. 

property  thus  appropriated — limitations  upon  the  capacity  of 
donors  to  make  such  gifts  were  first  imposed.  These  com- 
menced in  England  in  the  time  of  Henry  HI.;  hut  the  learned 
authors  of  the  history  of  the  corporations  of  that  realm  affirm, 
that  cities  were  not  included  in  them — 'perhaps  upon  the 
ground  that  the  grants  were  for  the  public  good;'  and,  al- 
though '  the  same  effect  was  produced  by  the  grant  in  perpe- 
tuity to  the  inhabitants,'  'the  same  practical  inconvenience 
did  not  arise  from  it,  nor  was  it  at  the  time  considered  a  mort- 
main.' 1  '  A  century  later  there  was  a  direct  inhibition  upon 
grants  to  cities,  boroughs,  and  others,  which  have  perpetual 
commonalty,'  and  others  'which  have  offices  perpetual,'  and, 
therefore,  'be  as  perpetual  as  people  of  religion.'  The  Eng- 
lish statutes  of  mortmain  forfeit  to  the  king  or  superior  lord 
the  estates  granted,  which  right  is  to  be  exerted  by  entry;  a 
license,  therefore,  from  the  king  severs  the  forfeiture.  The 
legal  history  of  the  continent  on  this  subject  does  not  material- 
ly vary  from  that  of  England.  The  same  alternations  of  favor, 
encouragement,  jealousy,  restraint,  and  prohibition,  are  dis- 
cernible. The  Code  Napoleon,  maintaining  the  spirit  of  the 
ordinances  of  the  monarchy,  in  1731,  1749,  1762,  provides 
'that  donations,  during  life  or  by  will,  for  the  benefit  of  hos- 
pitals of  the  poor  of  a  commune,  or  of  establishments  of  public 
utility,  shall  not  take  effect,  except  so  far  as  they  shall  be  au- 
thorized by  an  ordinance  of  the  government.'  The  learned 
Savigny,  writing  for  Germany,  says:  'Modern  legislation,  for 
reasons  of  policy  or  political  bconomy,  have  restrained  convey- 
ances in  mortmain,  but  those  restrictions  formed  no  part  of 
the  common  law.'  The  laws  of  Spain  contained  no  material 
change  of  the  Roman  and  ecclesiastical  laws  upon  this  subject." 

§  429.  These  Restrictions  not  in  Force  in  this  Country. — "  This 
legislation  of  Europe  was  directed  to  check  the  wealth  and  in- 
fluence of  juridical  persons  who  had  existed  for  centuries  there, 
some  of  whom  had  outlived  the  necessities  which  had  led  to 
their  organization  and  endowment.  Political  reasons  entered 
largely  into  the  motives  for  this  legislation — reasons  which 

1  Mereweth.  &  Steph.  Hist.  Corp.  489,  702. 


CH.  XV.]  CORPORATE  PROPERTY.  417 

never  extended  their  influence  to  this  continent,  and,  conse- 
quently, it  has  not  been  introduced  into  our  systems  of  juris- 
prudence." ' 

§  430.  Result  of  Legislation  in  Europe. — "  The  precise  result 
of  the  legislation  is,  that  corporations  there  (in  England  and 
Europe),  with  the  capacity  of  acquiring  property,  must  derive 
their  capacity  from  the  sovereign  authority,  and  the  practice 
is,  to  limit  that  general  capacity  within  narrow  limits,  or  to 
subject  each  acquisition  to  the  revisal  of  the  sovereign."  2 

§  431.  It  is  a  settled  rule  of  the  common  law  that  a  grant, 
to  be  valid,  must  be  to  a  corporation,  or  to  some  certain  person 
named,  who  can  take,  by  force  of  the  grant,  and  hold  either  in 
his  own  right  or  as  trustee.3  Therefore,  a  grant  by  an.individ 
ual,  of  a  lot  of  land  to  "the  people  of"  a  specified  county,  not 
incorporated,  is  void.4  So  a  reservation  in  a  deed,  in  favOr  of 
the  inhabitants  of  an  unincorporated  place,  is  invalid.5    But 

1  2  Kent  Com.  282,  283 ;  Whicker  v.  Hume,  14  Beav.  509  ;  see,  also,  Cham- 
bers v.  St.  Louis,  29  Mo.  543,  575,  and  remarks  of  Scott,  J. 

2  Per  Mr.  Justice  Campbell,  15  How.  404-407. 

8  Co.  Litt.  3,  a;  10  Co.  26, 6;  Com.  Dig.  Tit.  Capacity,  B.  1 ;  Shep.  Touch. 
236.  "  It  is  a  gen  eral  rule,  that  corporations  must  take  and  grant  by  their  cor- 
porate name : "  2  Kent.  Com.  291.  A  corporation  aggregate  can  have  no 
predecessor,  and  in  a  writ  of  right  can  only  count  on  its  own  seizin.  A 
statute  of  1772,  in  Massachusetts,  provided  that  twelve  persons  should  be 
chosen  annually  by  the  inhabitants  of  the  town  of  Boston  as  overseers  of 
the  poor,  and  they  were  duly  incorporated.  In  1822  the  town  of  Boston 
was  changed  to  a  city,  the  act  providing  for  the  election  of  a  board  of  over- 
seers for  the  cily  who  shall  have  all  the  powers  and  be  subject  to  all  the 
duties  now,  by  law,  pertaining  to  the  overseers  of  the  poor  for  the  town  of 
Boston.  It  was  decided,  upon  great  consideration — Shaw,  C.  J.,  delivering 
the  opinion — that  this  was  a  continuance,  and  not  a  dissolution  or  suspension, 
of  the  corporation  of  1772;  that  the  bodies  were  public  corporations,  aggre- 
gate and  not  sole,  with  perpetual  succession ;  that  a  grant  to  them  of  real 
estate  carried  the  fee,  without  being,  to  their  successors,  and  that  in  a  writ 
of  right  they  can  count  only  upon  their  own  seizin  within  thirty  years  next 
before  the  commencement  of  the  action:  Overseers  of  the  Poor,  &c.  v. 
Sears,  22  Pick.  122,  1839. 

4  Jackson  v.  Cory,  8  Johns.  385,  1811 ;  Jackson  v.  Hartwell,  iJb.  422. 

5  Hornbeck  v.  Westbrook,  9  Johns.  73,  1812.  See  reference  to  this  case 
and  Jackson  v.  Cory,  8  Johns.  385,  by  Savage,  C.  J.,  in  North  Hempstead  v. 
Hempstead,  2  Wend.  109,  133.    Although  a  deed  may  not  operate  as  a  grant 

53 


418  MUNICIPAL    CORPORATIONS.  [CH.  XV. 

a  grant  by  the  state  or  by  the  sovereign  authority  having  the 
right  to  create  corporations,  to  one  or  more  persons  who  are 
named  as  patentees  for  themselves  and  the  inhabitants  of  a  des- 
ignated town  is  valid,  because  the  grant  itself,  coming  from 
this  source,  confers  a  capacity  to  take  and  hold  the  lands  in  a 
corporate  character.1 

§  432.  The  English  statutes  #  of  mortmain  are  not  in  force 
in  this  country,  unless  by  virtue  of  express  legislation  to  that 
effect ; 2  and  consquently,  a  municipal  corporation  has  the  com- 
mon law  or  implied  power,  unless  restrained  by  charter  or 
statute,  to  purchase  and  hold  all  such  real  estate  as  may  be 
necessary  to  the  proper  exercise  of  any  power  specifically 
granted,  or  essential  to  those  purposes  of  municipal  govern- 
ment for  which  it  was  created.3  This  power  may  be,  and  in- 
deed, often  is,  conferred  in  express  terms.     But  it  may  result, 

because  of  a  want  of  legal  capacity  in  the  grantee  to  take,  yet  if  it  contains 
a  general  covenant  of  warranty  it  may  operate  by  way  of  estoppel :  Terrett 
v.  Taylor,  9  Cranch  (IT.  8.),  43,  52,  53;   Mason  v.  Muncaster,  9  Wheat.  445. 
As  to  grants  and  devises  for  charitable  purposes,  see  infra. 

1  North  Hempstead  v.  Hempstead,  2  Wend.  109,  133,  1828;  and  see,  also, 
Denton  v.  Jackson,  2  Johns.  Ch.  320;  7  ib.  254;  Goodrell  v.  Jackson,  20 
Johns.  706;  Jackson  v.  Leroy,  5  Cow.  397;  Bow  v.  Allentown,  34  N.  H.  351, 
372.  The  right  of  a  municipal  corporation  to  its  grants  of  property  is  not 
destroyed  by  a  change  of  its  name,  and  an  enlargement  of  its  territory,  and 
a  reconstruction  of  its  powers:  Girard  v.  Philadelphia,  7  Wall.  1.  Ante, 
Chap.  IV. ;  Chap.  V.  p.  99;  Chap.  VII.  p.  159,  Sec.  115. 

2  Perin  v.  Carey  (charitable  devise  to  Cincinnati),  24  How.  465,  1860 ;  Da- 
vison College,  v.  Chambers  Executors,  3  Jones  Eq.  (N.  C),  253,  1857 ;  2 
Kent  Com.  282,  283 ;  Chambers  v.  St.  Louis,  29  Mo.  543,  575,  per  Scott,  J. ;  2 
Wasb.  Real  Property  (2d  edition),  591,  top  ;  Paige  v.  Heinburg,  40  Vt.  81. 

8  Ketchum  v.  Buffalo,  14  N.  Y.  356,  360,  1856,  per  Selden,  J. ;  2  Kent  Com. 
281 ;  Co.  Litt.  44  a,  300  b ;  1  Kyd  on  Corp.  76, 78, 108,  115 ;  State  v.  Commis- 
sioners, &c.  3  Zabr.  (N.  J.)  510 ;  Mcoll  v.  Eailroad  Company,  12  N.  Y.  (2  Kern-.) 
121, 127 ;  McCartee  v.  Orphans'  Society,  9  Cow.  437 ;  Ex  parte  Iron  Company, 
7  Cow.  240,  552;  Heirs  of  Reynolds  v.  Commissioners,  &c.  5  Ohio,  204, 1831; 
Perin  v  Carey,  supra;  State  v.  Brown,  3  Dutch.  (N.  J.)  13;  Davison  College 
^.Chambers  Executors  (full  discussion),  3  Jones  Eq.  (N.  C.)  253;  Paige  tf. 
Heinburg,  40  Vt.  81 ;  State  v.  Madison,  7  Wis.  688 ;  Louisville  v.  Common- 
wealth, 1  Duvall  (Ky.),  295.  Implied  or  express  restrictions  on  the  right 
to  take  and  hold  real  estate  are  not,  in  this  country,  construed  in  a  spirit  of 
hostility  and  jealousy :  Per  Scott,  J.,  in  Chambers  v.  St.  Louis,  29  Mo.  543, 
573,  576, 


OH.  XV.]  CORPORATE  PROPERTY.  419 

in  the  absence  of  express  provision,  as  a  necessary  incident  to 
powers  specifically  granted.  To  illustrate  the  last  proposition : 
Power  is  given  to  a  city  to  "  establish  markets,"  that  is,  public 
places  for  the  sale  of  commodities.  To  establish  such  place, 
ground  is  necessary.  A  market  house  on  the  public  streets, 
or  on  the  public  square,  would  be  a  nuisance.  It  could  not  be 
erected  or  established  upon  private  property  without  consent 
or  grant.  Thus,  by  this  course  of  reasoning,  the  result  is  reached 
that  the  power  "to  establish  a  market,"  of  necessity,  implies 
or  carries  with  it  the  power  to  lease  or  purchase  the  requisite 
site.  Such  an  authority  could  not  probably  be  deduced  from 
the  words  "to  regulate  market*,"  because  the  words  "to  regu- 
late" "naturally,  if  not  necessarily,  pre-suppose  the  existence 
of  the  thing  to  be  regulated."1 

§  433.  The  charter  is  the  source  of  power  in  respect  to  the 
property  rights  of  the  corporation.  If  the  charter  be  silent  the 
implied  power  exists,  at  least  to  the  extent  just  stated,  to  ac- 
quire, hold,  and  alienate  or  dispose  of  property.  But  it  is  not 
unusual  for  the  charter  to  grant  the  power  and  fix  its  limits. 
Where  this  is  done,  the  terms  and  purpose  of  the  grant  de- 
termine the  nature,  extent,  and  limitations  of  the  power,  the 
charter  being  construed,  of  course,  in  the  light  of  the  general 
legislation  of  the  state.  And  general  authority  to  purchase 
and  hold  property  should,  doubtless,  be  construed  to  mean  for 
purposes  authorized  by  the  charter,  and  not  for  speculation  or 
profit.2 

1  Ketchum  v.  Buffalo,  14  N.  Y.  356,  1856.  See,  also,  Peterson  v.  Mayor 
&c.  of  New  York,  17  N.  Y.  449,  reversing  S.  C.  4  E.  D.  Smith,  413,  1858 ;  Le 
Couteleux  v.  Buffalo,  33  N.  Y.  333,  1865. 

2  Bank  of  Michigan  v.  Niles,  1  Doug.  (Mich.)  401 ;  Davison  College  v. 
Chambers'  Executors,  3  Jones,  Eq.  (N.  C.)  253, 1857 ;  State  Bank  v.  Brack- 
enridge,  7  Blackf.  (Ind.)  395,  1845.  Ante,  chapters  V.,  VI.,  XII.,  XIV.  A 
special  provision  in  a  charter  authorizing  the  corporation  to  take  and  hold 
real  estate  by  purchase,  is  to  be  construed  as  meaning  that  it  may  do  this, 
subject  to  the  restrictions  created  by  the  general  statutes  of  the  state  relat- 
ing to  this  matter :  McOartee  v.  Orphan  Asylum  Society,  9  Cow.  437,  1827. 
Charter  and  general  law  construed  together,  being  in  pari  materia :  Cham- 
bers v.  St.  Louis  (Mullanphy  Will  Case),  29  Mo.  543, 1860.  A  city,  owning  the 
soil,  may,  like  other  owners,  reclaim  the  land  between  high  and  low  water 
mark,  and  when  thus  reclaimed  a  highway  may  be  laid  out  upon  it :    Rich- 


420  MUNICIPAL   CORPOKATIONS.  [CH.  XV. 

§  434.  "The  inference,"  says  Chancellor  Kent,  " from  the 
statutes  creating  corporations  and  authorizing  them  to  hold 
real  estate  to  a  certain  limited  extent  is,  that  our  statute  corpo- 
rations cannot  take  and  hold  real  estate  for  purposes  foreign 
to  their  institution."1  In  an  important  case  in  Louisiana  it 
was  decided  that  a  purchase  of  real  estate  by  the  corporation 

ardson  v.  Boston,  24  How.  (U.  S.)  188,  and  cases  cited.  Ante,  p.  120,  Sec.  73. 
Eights  to  alluvion  within  corporate  limits :  Kennedy  v.  Municipality,  10 
La.  An.  54 ;  Barett  v.  New  Orleans,  13  ib.  105  ;  ib.  154 ;  ib.  349 ;  Remy  v.  Mu- 
nicipality 11  ib.  148;  Carrollton  Railroad  Company  v.  Winthrop,  5  ib.  36 ; 
Beaufort  v.  Duncan,  1  Jones,  Law,  234 ;  Richardson  v.  Boston,  24  How.  (U. 
S.)  188,  and  cases  cited.  Rights  as  riparian  proprietor  to  wharf  out:  Ante,  p. 
119 ;  Dana  v.  Wharf  Company,  31  Cal.  118 ;  People  v.  Broadway  Wharf 
Company,  ib.  33 ;  San  Francisco  v.  Calderwood,  ib.  585 ;  Bell  v.  Gough,  3 
Zabr.  624.    Ante,  Sees.  70-75. 

A  municipality  owning  land  is  not  estopped  ,to  claim  title  to  it,  because  its 
officers,  without  authority,  have  assessed  the  same  to  a  private  person,  re- 
turned the  same  as  delinquent,  and  subsequently  sold  it  at  a  tax  sale.  The 
reason  is,  that  all  these  acts  of  its  officers  are  unauthorized  and  void,  and  a 
purchaser  at  a  tax  sale  is  bound  to  take  notice  of  the  extent  of  their  pow- 
ers :  St.  Louis  v.  Gorman,  29  Mo.  593,  1860.  Same  principle :  Rossire  v. 
Boston,  4  Allen,  57  ;  McFarland  v.  Kerr,  10,  Bosw.  (N.  Y)  249. 

As  to  adverse  possession  against  public  corporation :  Ib. ;  Turney  v.  Cham- 
berlain, 15  111.  271 ;  Alton  v.  Illinois  Transfer  Company,  12  111.  60. 

Special  powers  construed :  State  v.  "University,  4  Humph.  157 ;  State  v. 
Madison,  7  Wis>.  688 ;  Beaver  Dam  v.  Frings,  17  Wis.  398 ;  Galloway  v.  Lon- 
don, Law  Rep.  1  H.  L.  34 ;  Hey  ward  v,  Mayor,  &c.  of  New  York,  7  N.  Y. 
314:  A  deed  of  land  to  a  town  and  its  assigns,  for  value,  expressed  in  the 
usual  terms  of  a  conveyance,  and  containing  covenants,  was  construed  to 
grant  a  fee  simple,  although  the  land  was  expressed  to  be  for  the  use  of  a 
common,  or  ''a  meeting-house  green : "  Beach  v.  Haynes,  12  Vt.  15, 1840 ; 
State  v.  Woodward,  23  ib.  92,  1850.  When  conveyance  to  a  corporation 
passes  a  full  title,  and  not  one  in  trust  or  conditional :  Kerlin  v  Campbell, 
3  Harris  (Pa.),500 ;  Wright  v.  Linn,  9  Barr,  433 ;  Holliday  v.  Frisbie,  15  Cal. 
630.  When  a  tract  of  land  is  granted  for  a  specific  purpose,  as  for  a  school 
house,  and  a  school  house  is  erected  and  a  school  maintained  therein,  the 
grant  is  hot  forfeited  by  the  use  of  a  portion  of  the  land  not  needed  for  the 
school,  for  other  purposes,  such  as  leasing  it  for  cultivation,  or  for  building 
an  engine  house  thereon,  or  the  like :  Castleton  v.  Langdon,  19  Vt.  210, 
1847  ;  vide  Index— Dedication.  Under  the  power  to  purchase  and  hold 
property,  a  city  and  county  may  own  buildings  as  tenants  in  common,  to  be  used 
for  their  respective  public  purposes:  De  Witt  v.  San  Francisco,  2  Cal.  289, 
1852.  See  Bergen  v.  Clarkson,  1  Halst.  (N.  J.)  352.  Ante,  p.  135  Sec.  92. 
Rights  of  county  and  city  respecting  jail  built  by  the  corporate  authorities  of 
the  city :    Felts  v.  The  Mayor,  &c.  2  Head  (Tenn.),  363. 

1  Kent  Com.  283. 


CH.  XV.]  CORPORATE  PROPERTY.  421 

of  the  defendant,  for  $247,000,  payable  in  bonds,  at  twenty-five 
years  from  date,  for  the  purpose  of  platting  and  re-selling  the 
same,  and  thereby  improve  the  salubrity  of  the  city,  and  pro- 
mote the  convenience  of  the  citizens  as  to  streets,  was  legal.1 
If  the  court  was  right  in  holding  that  the  charter  and  laws 
authorized  the  purchase  of  real  estate  without  restriction, — 
which  admits  of  doubt, — the  case  shows  the  wisdom  of  the 
usual  limitations  in  charters  disabling  such  corporations  from 
acquiring,  by  purchase,  real  estate  for  other  than  corporate 
purposes. 

§  435.  Municipal  corporations  being  created  chiefly  for 
governmental  purposes,  and  for  the  attainment  of  local  objects 
merely,  the  general  rule  is,  that  they  cannot  purchase  and  hold 
real  estate  beyond  their  territorial  limits,  unless  this  power  is  con- 
ferred by  the  legislature.2  It  has  been  expressly  decided  that 
a  conveyance  to  a  municipal  corporation  of  lands  beyond  its 
boundaries,  for  the  purpose  of  a  street,  is  void,  though  the  cor- 
poration has,  by  its  charter,  power  "to  purchase,  hold,  and 
convey  any  real  property  for  the  public  use  of  the  corpora- 
tion."3 The  author  is  inclined  to  think  that  there  are  pur- 
purposes  for  which  such  a  corporation  may,  without  special 
grant,  purchase  and  hold  lands  extra-territorially,  as  for  a  pest 
house,  cemetery,  and  the  like  objects  of  a  municipal  character.4 

1  Municipality  v.  MoDonough,  2  Rob.  (La.)  244,  1842. 

*  Denton  v.  Jackson,  2  Johns.  Ch.  336 ;  North  Hempstead  v.  Hempstead, 
2  Wend.  131 ;  Hopk.  594 ;  Riley  v.  Rochester,  9  N.  Y.  (5  Seld.)  64,  1853,  re- 
versing S.  C.  13  Barb.  321 ;  Girard  v.  New  Orleans,  2  La.  An.  897 ;  Chambers 
v.  St.  Louis,  29  Mo.  543,  1850 ;  Bullock  v.  Curry,  2  Met.  (Ky.)  171  Concord  v. 
Boscawen  17  N.  H.  465. 

3  Riley  v.  Rochester,  supra. 

*  See  observations  of  Scott,  J.,  Chambers  v.  St.  Louis,  29  Mo.  542,  574,  575, 
as  to  object  of  express  authority  to  hold  lands  beyond  corporate  limits  for 
such  purposes.  Municipal  corporations  may,  for  proper  or  authorized  pur- 
poses, hold  lands  in  other  states,  unless  restrained  by  the  laws  of  the  latter 
state.  The  right  depends  upon  comity,  or  the  consent,  expressed  or  im- 
plied, of  the  sister  state :  McDonough  Will  Case,  15  How.  (U.  S.)  567, 1863 ; 
Angell  &  Ames,  Corp.  Chap.  V.  Sec.  161 ;  1  Wasb.  Real  Property,  50,  pi.  27 ; 
Chambers  v.  St.  Louis,  supra  ;  Seebold  v.  Shitler,  34  Pa.  St.  133 ;  Bank  of  Au- 
gusta v.  Earle,  13  Pet.  519,  584, 1839 ;  Runyan  v.  Coster's  Lesfsee,  14  ib.  122. 
In  these  last  two  cases  the  extra-territorial  rights  of  corporations  are  very 
elaborately  discussed  and  examined. 


422  MUNICIPAL   CORPORATIONS.  [CH.  XV. 

§  436.  Municipal  and  public  corporations  may  be  the  objects 
of  public  and  private  bounty.  This  is  reasonable  and  just.  They 
are  in  law  clothed  with  the  power  of  individuality.  They  are 
placed  by  law  under  various  obligations  and  duties.  Legacies 
of  personal  property,  devises  of  real  property,  and  gifts  of 
either  species  of  property,  directly  to  the  corporation  and  for 
its  own  use  and  benefit,  intended  to  and  which  have  the  effect 
to  ease  them  of  their  obligations  or  lighten  the  burdens  of 
their  citizens,  are  valid  in  law,  in  the  absence  of  disabling  or 
restraining  statutes.1  Thus,  a  conveyance  of  land  to  a  town 
or  other  public  corporation  for  benevolent  or  public  purposes,  as 
for  a  site  for  a  school  house,  city  or  town  house,  and  the  like, 
is  based  upon  a  sufficient  consideration,  and  such  conveyances 
are  liberally  construed  in  support  of  the  object  contemplated.2 

1  Inhabitants,  &c.  of  Sutton  v.  Cole,  3  Pick.  232,  238,  1825,  per  Parker,  C. 
J.;  Inhabitants,  &c.  of  Worcester  v.  Eaton,  13  Mass.  371,  378,  1816 ;  Hamden 
v.  Rice,  24  Conn.  350,  1856;  Cogshall  v.  Pelton,  7  Johns.  Ch.  292  (bequest  to 
erect  town  house);  McDonough  Will  Case,  15  How.  367,  1855;  2  Kent  Com. 
285 ;  Angell  &  Ames,  Sees.  177,  178. 

Speaking  of  Missouri,  Scott,  J.,  says:  "There  is  nothing  in  our  statute 
concerning  wills  which  prohibits  corporations  from  taking  by  devise;  so 
that,  as  to  their  capacity  to  take  by  devise,  they  stand  on  the  same  ground 
as  natural  persons:"  Chambers  v.  St.  Louis,.  29  Mo.  543,  574.  So  in  Ohio: 
Perin  v.  Carey,  24  How.  465,  505,  per  Wayne,  J.  In  New  York,  by  the  Stat- 
ute of  wills,  following  the  English  statutes  of  Henry  VIII.,  "bodies  politic 
and  corporate"  are  incapacitated  to  take  real  estate,  and  a  devise  directly  to 
a  corporation,  and  not  to  a  natural  person  in  trust  for  the  corporation,  was 
adjudged  to  be  void  by  the  statute;  and  this  notwithstanding  the  corporate 
devisee  was,  by  its  charter,  declared  to  be  "'  capable  in  law  of  purchasing, 
holding,  and  conveying  real  estate  for  the  use  of  the  said  corporation." 
This  special  authority  to  take  by  "purchase"  (which  term  was  held  not  to 
include  a  devise)  was,  by  the  majority  of  the  Court  of  Errors,  considered  to 
mean  subject  to  the  restrictions  and  incapacities  created  by  the  general 
statutes:  McCartee  v.  Orphan  Asylum  Society,  9  Cow.  437,  1828.  As  to 
devises  in  New  York  in  trust  for  a  corporation,  under  statute,  see  Theolog- 
ical Seminary  v.  Childs,  4  Paige,  418;  Wright  v.  M.  E.  Church,  1  Hoff.  Ch. 
225.  But  authority  to  a  corporation  to  take  land  "by  diiect  purchase  or 
otherwise,"  gives  capacity  to  take  by  devise:  Downing  v.  Marshall,  23  N.  Y. 
366,  1861.  Authority  "  to  hold,  purchase,  and  convey,"  confers  capacity  to 
receive  a  devise  of  lands :  American  Bible  Society  v.  Marshall,  15  Ohio  St. 
537. 

2  Castleton  v.  Langdon  (land  conveyed  to  town  for  school  house),  19  Vt. 
210, 1847 ;  Jackson  v.  Pike  (land  conveyed  to  county  for  court  house  and 
jail),  9  Cow.  61,  1828;  State  v.  Atkinson  ("public  common"),  24  Vt.  448;  Le 
Couteleux  v.  Buffalo  (conveyance  for  "free  school"),  33  N.  Y.  333,  1865; 


CH.  XV.J  CORPORATE  PROPERTY.  423 

§  437.  Wot  only  may  municipal  corporations  take  and  hold 
property  in  their  own  right  by  direct  gift,  conveyance,  or 
devise,  but  the  cases  firmly  establish  the  principle,  also,  that 
such  corporations,  at  least  in  this  country,  are  capable,  unless 
specially  restrained,  of  taking  property,  real  and  personal,  in 
trust  for  purposes  germane  to  the  objects  of  the  corporation, 
or  which  will  promote,  aid,  or  assist  in  carrying  out  or  per- 
fecting those  objects.  So  such  corporations  may  become  cestuis 
que  trust  within  the  scope  of  the  purposes  for  which  they  are 
created.  And  where  the  trust  reposed  in  the  corporation  is 
for  the  benefit  of  the  corporation,  or  for  a  charity  within  the 
scope  of  its  duties,  it  may  be  compelled,  in  equity,  to  adminis- 
ter and  execute  it.1 

French  v.  Quincy  (conveyance  for  "town  house"),  3  Allen,  9.  Corporations 
may,  for  such  purposes,  purchase  and  take  the/ee  of  lands,  and  change  the 
location  at  will.  This  is  unlike  the  ordinary  case  of  the  dedication  by  an 
individual  of  the  use  of  lands  to  some  public  purpose — e.  g.  a  town  common 
—  in  which  case  the  corporation  cannot  alien  the  land:  Beach  v.  Haynes, 
12  Vt.  15,  1840;  States  Woodward,  23 ib.  92,  1850.  That  municipal  corpora- 
tions may  be  authorized  to  take,  hold,  and  alienate  lands  in  fee,  see,  also,  2 
Kent  Com.  28* ;  Hey  ward  v.  Mayor,  &c.  of  New  York,  7N.Y.  314,  1852 ;  The 
People  v.  Mauran,  5  Denio,  389,  1848;  Heirs  of  Reynolds  v.  Commissioners, 
&c.  5  Ohio,  204,  1848;  Mcoll  v.  Railroad  Company,  12  N.  Y.  121,  1854;  Page 
v.  Heinburg,  40  Vt.  81. 

'  2  Kent  Com.  279,280;  Jackson  o.  Hartwell,  8  Johns.  422;  1  Kyd,  72; 
Green  v.  Rutherford,  1  Ves.  462;  Trustees,  &c.  v.  King,  12  Mass.  546;  Picker- 
ing v.  Shotwell,  10  Barr  (Pa.),  27;  Chambers  v.  St.  Lauis,  29  Mo.  543,  I860; 
Mayor,  &c.  v.  Elliot,  3  Rawle  (Pa.),  170;  McDonpugh  Will  Case,  15  How. 
367,1853;  McDonough's  Case  (in  Supreme  Court  of  Louisiana),  8  La.  An. 
171,  1853;  Girard's  Will,  2  La.  An.  898;  2  How.  127,  1844;  7  Wall.  1;  2 
Wash.  Real  Prop.  205,  pi.  3;  Angell  &  Ames,  Corp.  Sec.  168;  Willis  Trust. 
33-45;  Perin  v.  Carey,  24  How.  465,  1860;  Bell  County  v.  Alexander,  22 
Texas,  350,  1858;  Columbia  Bridge  v.  Kline,  Bright.  (Pa.)  320;  Miller  u. 
Lerch,  1  Wall.  Jr.  (Pa.)  210;   Webb  v.  Neal,  5  Allen,  575,  1863. 

It  is  quite  usual  in  England  for  municipal  corporations  to  hold  property 
for  charitable  trusts  of  a  public  nature,  over  the  administration  of  which 
chancery  has  jurisdiction,  and  the  subject  of  such  trusts  is  regulated  by  the 
Municipal  Corporations  Act  of  5  and  6  Will.  IV.  Chap.  LXXVI.  Sec.  71. 
See  Rex  v.  Saukey,  5  A.  &  E.  423 ;  Grant,  Corp.  136.  Tolls  granted  by  char- 
ter to  a  corporation,  for  the  reparation  of  walls  and  bridges  within  the  bor- 
ough, are  gifts  for  charitable  purposes,  within  39  Eliz.  Chap.  V.,  to  be  ad- 
ministered in  chancery :  Attorney  General  v.  Shrewsbury,  6  Beav.  220;  In 
re  Corporation  of  Newcastle,  12  CI.  &F.  402;  ib.  487;  Mayor,  &c.  v.  Attorney 
General,  3  CI.  &  F.  289.    Post,  Chap.  XXII. 


424  MUNICIPAL    CORPORATIONS.  [CH.  XV. 

§  438.  The  leading  case  in  this  country  on  the  subject  men- 
tioned in  the  last  sectior  is  the  celebrated  Girard  Will  Case, 
reported  in  the  Supreme  Court  of  the  United  States,  under  the 
name  of  Vidal  v.  Grirard's  Executors.1  Better  to  understand 
the  case,  it  may  be  stated  that  the  act  incorporating  the  city  of 
Philadelphia  expressly  provided  that  the  corporation  should 
have  power  "to  purchase,  take,  possess,  and  enjoy  lands, 
franchises,  goods,  chattels,"  &c,  without  limitation  as  to  value 
or  amount;  and  32  and  34  Henry  VIII.  disabling  corporations 
from  taking  by  devise,  was  declared  not  to  be  in  force  in  Penn- 
sylvania. Under  these  circumstances,  it  was  held  that  the 
corporation  of  the  city  had  the  capacity  to  take  real  and  per- 
sonal property  by  devise,  as  well  as  by  deed.  The  city  also 
possessed  general  power  "for  the  suppression  of  vice  and  im- 
morality, the  advancement  of  the  public  health  and  order,  and 
the  promotion  of  trade,  industry,  and  happiness."  Grirard's 
devise  was  to  the  city,  in  trust,  for  the  establishment  of  a  college 
for  the  education  and  support  of  indigent  orphan  boys.  This  pre- 
sented the  inquiry  whether  the  corporation  was  capable  of 
taking  real  and  personal  estate  in  trust,  and  of  executing  the 
trust,  and  the  affirmative  of  both  propositions  was  adjudged. 

1  Vidal  v.  Girard's  Executors,  2  How.  127,  1844.  The  court  lays  down  this 
rule :  "Where  the  corporation  has  a  legal  capacity  to  take  real  or  personal 
estate,  there  it  may  take  and  hold  it  upon  trust,  in  the  same  manner  and  to 
the  same  extent  as  a  private  person  may  do.  It  is  true  that  if  the  trust  be 
repugnant  to,  or  inconsistent  with,  the  proper  purposes  for  which  the  cor- 
poration was  created,  that  may  furnish  a  ground  why  it  may  not  be  com- 
pellable to  execute  it.  But  it  will  furnish  no  ground  to  declare  the  trust 
itself  void,  if  otherwise  unexceptionable ;  but  it  will  simply  require  a  new 
trustee  to  be  substituted  by  the  proper  court,  possessing  equity  jurisdiction, 
to  enforce  and  perfect  the  objects  of  the  trust."  (Re-affirmed,  Perin  v. 
Carey,  24  How.  465,  1860;  Girard  v.  Philadelphia,  7  Wall.  1 ,  1868.)  The  fol- 
lowing further  observations  of  Mr.  Justice  Story  (who  delivered  the  opin- 
ion of  the  court  in  the  Girard  Will  Case)  are  of  especial  value:  "If  the  pur- 
poses of  the  trust  be  germane  to  the  objects  of  the  incorporation ;  if  they 
relate  to  matters  which  will  promote,  and  aid,  and  perfect  those  objects;  if 
they  tend  (as  the  charter  of  the  city  of  Philadelphia  expresses  it)  'to  the 
suppression  of  vice  and  immorality,  to  the  advancement  of  the  public 
health  and  order,  and  to  the  promotion  of  trade,  industry,  and  happiness,' 
where  is  the  law  to  be  found  which  prohibits  the  corporation  from  taking 
the  devise  upon  such  trust,  in  a  state  where  the  statutes  of  mortmain  do 
not  exist  (as  they  do  not  in  Pennsylvania),  the  porporation  itself  having  a 
legal  capacity  to  take  the  estate  as  wejl  foy  deyise  as  otherwise?    We  know 


CH.  XV.J  CORPORATE  PROPERTY.  425 

,  §  439.  The  McDonough  Will  Case  affords  an  interesting  and 
instructive  illustration  of  the  foregoing  principles.  John  Mc- 
Donough died  in  New  Orleans,  and,  by  will,  gave  a  large 
amount  of  real  and  personal  property  to  the  city  of  New 
Orleans  (his  adopted  residence)  and  to  the  city  of  Baltimore 
(his  native  place),  and  their  successors  forever,  with  a  prohibi- 
tion against  any  alienation  or  division  of  the  real  estate,  under 
penalty  of  forfeiture.  This  devise  was  made  for  the  purpose 
of  "educating  the  poor,  without  the  cost  of  a  cent  to  them,  in  the 
cities  of  'New  Orleans  and  Baltimore,  and  their  respective  sub- 
urbs." The  estate  thus  devised  was  to  be  managed  by  six 
agents,  three  to  be  selected  annually  by  each  city,  and  the 
municipal  authorities  were,  by  the  will,  excluded  from  the 
management  of  the  estate  or  the  application  of  its  revenues. 
By  the  civil  code  of  Louisiana,  corporations  created  by  law  are 
permitted  to  possess  an  estate,  receive  donations  and  legacies, 
make  valid  contracts  and  manage  their  own  business;  and  the 
city  of  ISTeW  Orleans  was,  by  statute,  authorized  and ;  required 
to  establish  public  schools  for  gratuitous  education,  &c.  The 
city  of  Baltimore  was  authorized,  by  statute,  to  establish  public 
schools,  and  to  receive  property  in  trust,  and  to  control  and 
exercise  the  trust  for  any  of  its  general  corporate  purposes,  in- 
cluding educational  and  charitable  purposes  of  any  description, 
within  its  limits.  This  will  was  contested  by  the  heirs.  It 
was  held  by  the  Supreme  Court  qf  the  United  States  that  these 
cities,  under  the  powers  conferred  upon  them,  had  the  right  to 

of  no  authorities  which  inculcate  such  a  doctrine  or  prohibit  the  execution 
of  such  trusts,  even  though  the  act  of  incorporation  may  have  for  its  main 
objects  mere  civil  and  municipal  government,  and  regulation,  and  powers. 
If,  for  example,  the  testator  by  his  present  will  had  devised  certain  estate 
of  the  value  of  $1,000,000  for  the  purpose  of  applying  the  income  thereof  to 
Supplying  the  city  of  Philadelphia  with  good  and  wholesome  water  forjthe 
use  of  its  citizens,  from  the  river  Schuylkill,  why,  although  not  specifically 
enumerated  among  the  objects  of  the  charter,  would  not  such  a  devise  upon 
such  a  trust  have  been  valid,  and  within  the  scope  of  the  legitimate  pur7 
poses  of  the  corporation,  and  the  corporation  capable  of  executing  it  as 
trustees?"  The  learned  judge  further  observes:  "Neither  is  there  any 
positive  objection,  in  point  of  law,  to  a  corporation  taking  property  upon  a 
trust  not  strictly  within  the  scope  of  the  direct  purposes  of  the  institution, 
but  collateral  to  them."  See,  also,  24  How.  465,  supra.  By  this  it  is  not 
tneant  that  a  corporation  may  take  and  execute  trusts  for  objects  "  utterly 
dehors  the  purposes  Of  the  incorporation." 
54 


426  MUNICIPAL   CORPORATIONS.  [CH.  XV. 

receive  this  devise,  and  that  the  will  was  valid.  It  was  also 
held  that,  under  the  Louisiana  code  (0.  C.  2026),  the  prohibi- 
tion against  alienation  did  not  invalidate  the  will.  And  the 
court  expressed  the  opinion  that,  by  the  common  law,  the 
restraints  upon  alienation  and  partition  were  not  conditions 
precedent,  but  conditions  subsequent;  and  would  not,  there- 
fore, by  the  common  law  rule,  even  if  illegal,  divest  the  estate 
or  invalidate  the  will.1 

§  440.  The  subject  again  underwent  a  full  examination  in 
the  McMicken  Will  Case,  reported  under  the  name  of  Perin  v. 
Carey.2  Charles  McMicken  devised  and  bequeathed  a  large 
amount  of  real  and  personal  property  "to  the  city  of  Cincin- 
nati and  its  successors,  in  trust,  for  the  purpose  of  building, 
establishing,  and  maintaining,  two  colleges  for  the  education  of 
boys  and  girls,  and  if  there  shall  remain  a  sufficient  surplus  of 
funds,  the  same  to  be  applied  to  the  support  of  poor  white  male 
and  female  orphans."  By  the  will,  the  city  is  directed  to  make 
and  establish  all  necessary  regulations,  and  to  appoint  directors 
to  the  institution ;  and  it  is  prohibited  from  ever  selling  any  por- 
tion of  the  real  estate  devised,  or  any  which  the  city  should 
purchase  for  the  benefit  of  said  institution.  By  its  charter,  the 
city  had  express  power  given  it  to  acquire  and  hold  real  estate 
for  the  legitimate  objects  of  the  city.     There  was  nothing  in 

1  McDonough  "Will  Case,  15  How.  (U.  S.)  367,  1853.  The  same  will  was 
previously  adjudged  to  be  valid  by  the  Supreme  Court  of  Louisiana.  Mr. 
Chief  Justice  Eustis,  in  delivering  the  opinion  of  the  state  court,  sustaining 
McDonough's  will,  says:  " That,  without  a  positive  prohibition,  municipal 
corporations  in  Louisiana  should  be  incapacitated  from  receiving  legacies 
for  the  public  purposes  of  health,  education,  and  charity,  seems  to  me  re- 
pugnant to  all  sound  ideas  of  policy,  and  to  the  reason  of  the  law : "  8  La. 
An.  171, 1853.  The  Girard  legacy  was  sustained  by  the  same  court:  Girard 
Heirs  v.  New  Orleans,  2  La.  An.  898. 

2  Perin  v.  Carey,  24  How.  465,  1860.  In  Maryland  (where,  however,  the 
statute  of  43  Elizabeth  is  not  in  force),  a  devise  to  the  city  of  Baltimore, 
"to  be  applied,  under  the  direction  of  said  corporation,  to  the  relief  and 
support  of  the  indigent  and  necessitous  poor  persons  who  may,  from  time 
to  time,  reside  within  the  limits,  as  now  known,  of  the  twelfth  ward  of  said 
city,"  was  adjudged  void,  as  being  "too  vague  and  indefinite,  and  too  diffi- 
cult of  being  correctly  ascertained,  to  be  enforced."  The  case  was  regarded 
as  being  embraced  in  the  prior  decisions :  Trippe  v.  Frazier,  4  Har.  & 
Johns.  446;  Dashiell  v.  Attorney  General,  5  ib.  392;  6  ib.  1. 


CH.  XV.]  CORPORATE  PROPERTY.  427 

the  charter  or  statutes  of  the  state  prohibiting  the  city  from 
taking  and  administering  charitable  trusts.  The  court  de- 
cided that  the  will  was  valid  ;  that  the  city,  as  a  corporation, 
was  capable  of  taking  and  administering  the  devises  and  be- 
quests for  the  charitable  uses  specified;  and  that  the  restraint 
upon  alienation  created  no  perpetuity  in  the  sense  forbidden 
by  the  law. 

§  441.  By  the  will  of  Mr.  Bryan  Mullanphy  (founding  a 
charity  now  in  beneficent  operation),  he  devised  "  one-third  of 
all  his  property,  real  and  personal,  to  the  city  of  St.  Louis,  in 
trust,  to  be  and  constitute  a  fund  to  furnish  relief  to  all  poor  emi- 
grants and  travelers  coming  to  St.  Louis  on  their  way,  bona  fide,  to 
settle  in  the  west."  The  greater  part  of  his  estate,  valued  at 
over  $1,500,000.  consisted  of  lands  in  St.  Louis  county,  but 
outside  of  the  city  limits.  It  was  held,  under  special  provis- 
ions of  the  statute  and  charter  of  the  city,  that  the  city  corpo- 
ration had  the  capacity  to  take,  and  that,  as  the  statute  con- 
cerning wills  did  not  prohibit  it,  she  could  take  by  devise  the 
same  as  natural  persons.  It  was  further  held,  that  the  city 
could  take  upon  the  trusts  mentioned  in  the  will,  and  could  exe- 
cute them  subject  to  the  control  of  the  Court  of  Equity,  whose 
jurisdiction  in  Missouri  was  considered  to  be  founded  not 
upon  the  statute  of  43  Elizabeth,  but  upon  the  common  law.1 

§  442.  So  a  bequest  to  the  city  of  Philadelphia,  in  trust,  to 
purchase  a  lot  of  ground  in  the  city  or  neighborhood,  and  erect 
thereon  a  hospital  for  the  indigent,  blind,  and  lame,  and  to  apply 
the  income  of  the  remainder  to  the  comfort  and  accommoda- 
tion of  as  many  of  such  persons  as  it  will  admit  of,  giving  pre- 
ference to  persons  resident  in  Philadelphia  or  its  neighborhood, 
is  valid,  since  it  is  in  trust  for  objects  within  the  scope  of  the 
corporate  duties  of  the  city.2  Other  instances  showing  the  ca- 
pacity of  public  corporations  to  take  property  and  to  act  as 
trustees,  are  given  in  the  note.3 

1  Chambers  v.  St.  Louis,  29  Mo.  543, 1860. 

2  Mayor,  &c.  of  Philadelphia  v.  Elliott,  3  Eawle  (Pa.),  170. 

8  A  bequest  "to  the  citizens  of  W.  to  purchase  a, fire  engine,"  was  regarded 
as  a  charitable  gift,  and  sustained,  the  court  considering  the  name,  whether 
to  the  corporation  or  the  citizens  composing  it  as  immaterial,  and  that  as 


428  MUNICIPAL   CORPORATION^.  [CH.  XV. 

§  443.  But  municipal  corporations  cannot,  for  the  same 
reasons  applicable  to  ordinary  corporations  aggregate,  hold 
lands  in  trust  for  any  object  or  matter  foreign  to  the  purposes  for 
which  they  are  created,  and  in  which  they  have  no  interest.1 
Thus,  while  the  supervisors  of  a  county,  who  are  made,  by  stat- 
ute, a  corporation  for  special  purposes,  may  take  by  grant  a  . 
parcel  of  land  in  trust  that  they  should  erect  a  court  house  and 
jail,  these  being  county  purposes;  yet  they  cannot  be  seized  as 

the  object  was  meritorious,  the  testator's  intention  should  be  allowed  to 
take  effect;  notwithstanding  any  misnomer  or  other  defect  in  name  or 
form:  Wright  v.  Linn,  9  Barr,  433.  See  Kirk  v.  King,  3  ib.  436;  School  Di- 
rectors v.  Dunkelberger,  6  ib.  31.  As  to  name  and  misnomer,  see  ante,  p.  162, 
et  seq. 

In  Texas  it  is  decided,  that  a  bequest  to  a  county  "for  the  benefit  ofputr 
lie  schools,"  is  not  void  for  uncertainty,  and  that  it  is  consistent  with  the  ob- 
ject and  function  of  the  corporation  which  may  take  and  administer  such  a 
trust.  And  so  of  a  bequest  for  the  benefit  of  indigent  persona  residing  in  the 
county,  counties  being  charged  with  the  duty  of  providing  for  the  support 
of  the  poor:  Bell  County  v.  Alexander,  22  Texas,  350,1858.  A  school  so- 
ciety in  Connecticut  is  a  corporation,  and  as  such  it  is  held  that  it  may,  upon 
well  settled  principles,  take  a  devise  or  bequest  in  trust  for  educational  pur- 
poses: First  Congregational  Society,  &c.  v.  Atwater,  23  Conn.  34,  1854,  Be- 
quest held  void  because  the  " school  commissioners"  named  were  not  a  cor- 
porate body:  Janey's  Executor  v.  Latane,  4  Leigh  (Va.),  327,  1833. 

*A  devise  to  a  town  of  property  "to  be  used  by  the  town  in  repairing  its 
highways  and  bridges  yearly,"  being  in  its  character  both  public  and  charita- 
ble, is  valid,  not  only  by  a  special  statute  in  Connecticut,  but  also,  it  would 
seem,  without  the  aid  of  any  special  enactment :  Hamden  v.  Rice,  24  Conn. 
350, 1856 ;  Cogshall  v.  Pelton,  7  Johns.  Ch.  292  (bequest  to  erect  town  house). 
See,  also,  Attorney. General  v.  Shrewsbury,  6  Beav.  220.  In  Ohio,  "gifts,, 
grants,  and  devises  to  the  poor  of  any  township,"  are,  by  statute  (Swan's, 
Stat.  637),  "good  and  valid  in  law"  when  made  directly  to  the  poor;  and 
they  are  held  to  be  good  when  made  to  a  trustee,  in  trust  for  the  poor  of  a 
township:  Urmey's  Executor  v.  Wooden,  1  Ohio  St.  160,  1853.  Bequest 
"to  the  orphans"  of  a  municipal  corporation  sustained:  Succession  of,  &c,  2 
Bob.  (La.)  438.  In  Indiana,  trie  statute  of  43  Elizabeth,' '  Chap.  IV.  is  in 
force  (McCord  v.  Ochiltree,  8  Blackf.  15),  and  a  devise  of  real  property  in  a 

town  in  that  state  to  be  "forever  appropriated  to  the  education  of 

children  of  this  town,"  is  within  that,  statute,  and  valid,  and  trustees  will 
be  appointed  by  the  court  to  manage  the  trust:  Richmond  v.  State,  5  Ind. 
334, 1854. 

1  1  Plowd.  103;  1  Kyd  on  Corp.  72.  In  matter  of  Howe,  1  Paige,  214, 
1828;  Trustees  «.  Peaslee,  15  N.  H.  317,  331 ;  Farmer's  Loan,  &c.  Co.  v.  Car- 
roll, 5  Barb.  613;  Hornbeck  v.  Westbrook,  9  Johns.  73;  North  Hempstead 
v.  Hempstead,  2"  Wend.  109;  Coggesnalj  y.  New  Rochelle  (legacy  for' town 
house),  7  Johns.  Ch,  ?92;  Sloan  v.  Mo'Conahy,  4  Ohio,'  16f,\ 


CH.  XV.]  CORPORATE  PROPERTY.  429 

trustees  for  the  use  of  an  individual,  or  in  trust  for  building  a 
church  or  school  house  for  the  use  of  the  inhabitants  of  a  par- 
ticular town  in  the  county.1  So  a  corporation,  with  authority  to 
establish,  in  a  designated  town,  an  institution  "for  the  instruc- 
tion of  youth,"  cannot  be  a  trustee  under  a  will  or  grant  to 
hold  funds  and  pay  over  the  income  thereof  for  the  support  of 
missionaries.2 

1  Jackson  v.  Hartwell,  8  Johns.  422.  See,  also,  Jackson  v.  Corey,  8  Johns. 
385. 

"Our  laws  are  full  of  instances  of  persons  clothed  with  corporate  powers 
for  certain  special  purposes.  The  loan  officers  of  a  county  are  a  corpora- 
tion ;  and  could  they,  as  such,  receive  a  grant  of  land  for  the  use  of  a  town. 
or  of  a  church?  Certainly  not.  Nor  can  the  supervisors  of  Oneida  county 
take  a  grant  of  land  for  the  use  of  the  town  of  Rome.  Such  a  grant  must  - 
he  deemed  void  upon  every  principle,  whether  we  consider  the  special  and 
defined  objects  of  a  corporate  capacity  in  the  board  of  supervisors;  whether 
we  consider  the  power  given  them  by  statute,  to  take  conveyances  of  land 
for  the  use  of  the  county;  or,  lastly,  whether  we  refer  to  the  incapacity  »f 
all  corporations  to  hold  lands  in  trust  for  any  other  object  than  that  far 
which  the  corporation  was  created.  Whether  the  Court  of  Equity  would  oar 
would  not  prevent  the  trust  as  to  the  inhabitants  of  Rome  from  failing  lor 
want  of  a  trustee,  is  not  a  question  for  a  court  of  law  [in  an  action  of  eje«t- 
ment]  to  decide:"  Per  Curiam,  jn  Jackson  «.  Hartwell,  8  Johns.  422,  1811. 
Legislature  or  chancery  may,  in  proper  cases,  appoint  trustees :  Bryant  v. 
McCandless,  7  Ohio,  part  2,  135;  Chapin  v.  School  District,  35  N.  H.  445; 
Girard  Will  Case,  2  How.  127;  Shotwell  v.  Mott,  2  Sandf.  Ch.  46.  It  was 
said,  by  Mr.  Justice  Story,  in  Vidal  v.  Mayor,  &c.  of  Philadelphia,  2  How. 
(U.  S.)  128,  that  there  is  "  no  positive  objection  in  point  of  law  to  a  corpora- 
tion taking  property  upon  a  trust  not  strictly  within  the  scope  of  its  institu- 
tion, but  collateral  to  it;  nay,  for  the  benefit  of  a  stranger,  or  another  cor- 
poration." See,  also,  Perin  v.  Carey,  24  How.  465,  1860,  per  Wayne,  J.  But 
Chancellor  Kent,  in  stating  that  a  corporation  may  he  a  trustee,  adds:. 
"And  at  this  day,  the  only  reasonable  limitation  is,  that  it  cannot  be;  seized, 
of  land  in  trust  for  purposes  foreign  to  its  institution:"  2  Kent  Conk.  280.. 

2  Trustees  v.  Peaslee,  15  N.  H.  317,  1844.  But  towns  in  New  HamsgsMre, 
it  has  been  decided,  may  legally  hold  funds  in  trust  for  the  suppontt  of  re- 
ligion within-  their  limits :  The  Dublin  Case,  38  N.  H.  459, 1859.  "  Such  in- 
stances," says  Perley,  C.  J.,  giving  the  judgment  of  the  court  (ib.  p..577,)  "are, 
it  is  believed,  very  numerous  in  this  state."  "  Under  our  constitution,  no 
one  can  entertain  a  doubt  that  to  maintain  the  institutions  of  reftgion  is  an 
object  quite  consistent  with  the  general  purpose  for  which  to.wns  are  cre- 
ated, and  that  towns  have  at  least  an  indirect  interest  in  promoting  .religion 
within  their  limits." 

As  towns  in  Massachusetts  were  Hable,  by  statute1,-  under  a  penalty  for. 
neglect  to  support  schools  (ante,  p.  34,  Sec.  11),  and  as  parishes  (organizations.! 
created  for  parochial  or  religious  purposes)  may  legally  -establish  schools/' 


430  MUNICIPAL   CORPORATIONS.  [CH.  XV. 

§  444.  "Whether  a  municipal  corporation,  with  power  to 
purchase  and  hold  real  estate  for  certain  purposes,  has  acquired, 
and  is  holding,  such  property  for  other  purposes,  is  a  question 
which  can  only  be  determined  in  a  proceeding  instituted  at  the 
instance  of  the  state.  If  there  is  capacity  to  purchase,  the  deed 
to  the  corporation  divests  the  estate  of  the  grantor,  and  there 
is  a  completed  sale,  and  whether  the  corporation,  in  purchas- 
ing, exceeds  its  power,  is  a  question  between  it  and  the  state, 
and  does  not  concern  the  vendor  or  others.1 

§  445.  Municipal  corporations  possess  the  incidental  or  im- 
plied right  to  alienate  or  dispose  of  the  property,  real  or  personal, 
of  the  corporation,  of  a  private  nature,  unless  restrained  by 
eharter  or  statute  ;  they  cannot,  of  course,  dispose  of  property 

and  raise  taxes  to  maintain  them,  though  not  required  to  do  so  under  a 
penalty  for  neglect,  as  towns  are,  it  was  decided  by  the  Supreme  Court  of 
that  state,  that  a  parish,  as  well  as  a  town,  was  capable  of  taking  and  hold- 
ing a  devise  of  real  estate,  "to  be  applied  for  the  use  of  schools:"  Parish  in 
Sutton  v.  Cole,  3  Pick.  232,  1825.  In  this  case  the  court  seemed  to  be  of 
opinion  that  such  corporations  could  not  take  or  hold  real  property  for  pur- 
poses wholly  foreign  to  the  specific  objects  for.  which  they  were  created. 

1  Chambers  v.  St.  Louis  (Mullanphy's  devise  to  city  of  St.  Louis),  29  Mo. 
543,  577,  1860 ;  Goundie  v.  Water  Company,  7  Pa.  St.  233,  1847 ;  Leazure  v. 
Hillegas,  7  Serg.  &  Rawl.  313,  320,  1821 ;  Davison  College  v.  Chambers's  Ex- 
ecutors, 3  Jones  Eq.  (N.  C.)  253,  258,  per  Pearson,  J.  A  corporation  cannot 
hold  property  in  violation  of  its  charter,  nor  can  it  take  it  in  violation  of  ite 
•charterby  an  actofthe  law:  lb.  See  Bank,  &c.  w.  Niles,  1  Doug.  (Mich.)  401.  The 
Banks  v.  Poitiaux,  3  Rand.  (Va.)  136 ;  Martin  v.  Bank,  15  Ala.  587  ;  Baird  v. 
Bank,  11  Serg.  &Rawl.  411 ;  Angell  &  Ames,  Corp.  Sees.  152, 153.  "  If  a  corpora- 
tion be  forbidden  by  its  charter  to  purchase  or  take  land,  a  deed  made  to  it 
■would  be  void : "  lb. ;  Leazure  v.  Hillegas,  7  Serg.  &  Rawl.  313.  A  deed  of 
real  estate  was  made  by  Betsey  Flagg  to  the  town  of  Worcester,  in  considera- 
tion of  five  dollars  (nominal),  and  that  the  town  should  support  her  (she 
being  lawfully  settled  in  the  town)  while  single.  The  court,  without  decid- 
ing that  the  acceptance  of  a  deed  by  the  officers  of  the  town  the  considera- 
tion of  which  imposes  upon  the  inhabitants  any  expense  or  burden,  would 
create  a  binding  contract  on  the  part  of  the  town,  or  that  the  grantor  might 
not  avoid  a  deed,  of  which  such  obligation  was  the  only  consideration,  held 
that  the  town,  on  the  delivery  of  the  deed  to  it,  became  seized  of  the  estate, 
could  maintain  ejectment  against  a  disseizor,  and  that  the  deed  would  re- 
main good  until  avoided  by  the  grantor,  or  by  some  one  in  privity  of  estate : 
Inhabitants  of  Worcester  v.  Eaton,  13  Mass,  371,  1816.  The  court  say  (ib.  p. 
378),  "whether  the  inhabitants  of  a  town  can  be  assessed  to  raise  money  to 
purchase  lands  to  be  used  for  any  other  purpose  than  the  execution  of  some 
lawful  requisition,  is  a  different  question." 


CH.  XV.]  CORPORATE  PROPERTY.  431 

of  a  public  nature,  in  violation  of  the  trusts  upon  which  it  is 
held,  nor  of  the  public  squares,  streets,  or  commons.1  The 
distinction  is  between  property  which  a  corporation  may  own 
the  same  as  a  natural  person,  and  that  which  it  holds  in  gen- 
eral or  special  trust.  The  rights  of  the  corporation  as  a  prop- 
erty holder  are  distinct  from  the  legislative  rights  of  the  corpo- 
ration :  the  corporation  may  alien  its  private  propotty,  but  it 
cannot  (as  elsewhere  shown)  cede  away  the  power  of  munici- 
pal control. 

1  1  Kyd,  108 ;  Smith  v.  Barrett,  1  Siderf.  162 ;  2  Kent  Com.  281 ;  Reynolds 
v.  Stark  County,  5  Ohio,  204,  1831 ;  Augusta  v.  Perkins,  3  B.  Mon.  437  ;  Col- 
chester v.  Lowton,  1  Vesey  &  Beame,  226 ;  Alvez  v.  Henderson,  16  B.  Mon. 
131,  168,  1855 ;  Bowlin  v.  Furman,  28  Mo.  427 ;  Kennedy  v.  Covington,  8 
Dana,  50;  Newark  v.  Elliott,  5  Ohio  St.  113,  1855;  Ransom  v.  Boal,  29  Iowa, 
68, 1870 ;  Angell  &  Ames,  Corp.  Sec.  187  ;  Sill  v.  Lansinburg  (conveyance  of 
public  square  void),  16  Barb.  107;  Knox  County  v.  McComb,  19  Ohio  St. 
320 ;  Philadelphia  v.  Railroad  Company,  58  Pa.  St.  253;  Holliday  v.  Frisbie, 
15  Cal.  630,  1860.     Ante,  Sec.  396. 

A  corporation  may  alien  land  held  by  it  in  fee  simple,  though  purchased 
for  the  use  of  a  common:  Beach  v.  Haynes,  12  Vt.  15,  1840.  But  not,  if 
after  its  purchase  it  has  dedicated  it  to  the  public :  State  v.  Woodward,  23 
Vt.  92,  1850. 

Where  an  act  of  the  legislature  confers  upon  a  corporation  the  power  to 
tell  certain  property  originally  donated  by  the  state  to  the  corporation,  and 
enumerates  the  objects  for  which  such  sale  may  be  made,  it  is  not  compe- 
tent for  the  corporation  to  dedicate  such  property  to  the  public  use  of  the 
citizens :    Wright  v.  Victoria,  4  Texas,  375. 

Mr.  Grant,  after  an  examination  of  the  English  authorities,  observes  that 
"no  decision  of  the  common  law  courts,  directly  in  point,  can  be  found, 
laying  down  the  law  to  be,  that  to  alien  its  real  property  at  pleasure  is  inci- 
dent to  a  corporation : "  Grant,  129, 134.  But  in  this  country  there  can  be 
no  doubt  as  to  the  general  implied  authority  of  corporations,  unless  restrained, 
to  dispose  of  property  of  a  private  nature :  Newark  v.  Elliott,  5  Ohio  St.  113 ; 
2  Wasi.b.  Real  Prop.  588  (2d  edition),  top.  The  English  Municipal  Corpo- 
rations Act  of  1835  imposes  certain  specific  restraints  on  the  right  of  mu- 
nicipal corporations  to  alien,  mortgage,  or  lease  their  real  property :  5  and 
6  Will.  IV.  Chap.  LXXVI.  Sec.  94 ;  Grant,  Corp.  140. 

A  condition  annexed  to  a  grant  of  land  in  fee  simple  by  a  city  corporation 
may,  as  in  the  case  of  similar  conditions  in  the  deed  of  an  individual,  be 
dispensed  with  or  waived  by  the  grantor,  and  this  as  well  by  acts  as  by 
express  agreement,  and  when  once  dispensed  with  or  waived,  it  is  gone 
forever:  Sharon  Iron  Company  v.  Erie,  41  Pa.  St.  341,  1861.  As  to  breach 
of  condition  in  a  deed  of  land  to  be  used  only  as  a  place  for  a  town  house  : 
French  v.  Quincy,  3  Allen,  9.  A  municipal  corporation,  having  by  its  char- 
ter full  power  to  purchase,  hold,  and  convey  lands,  received,  for  a  valuable 
consideration,  a  deed  of  a  parcel  of  land  containing  one  acre,  "for  the  use  of 


,432  MUNICIPAL   CORPORATIONS.  [CH.  XV. 

§  446.  In  some  of  the  states  it  is  held  that  the:  private  prop- 
erty of  municipal  corporations,  that  is,  such  as  they  own  for 
.■profit,  and  charged  with  no  public  trusts  or  uses,  may  be  sold  on 
execution  against  them.1  In  other  states,  either  by  statute,  or 
on  general  principles,  it  is  declared  that  judgments  against  mu- 
nicipal corporations  cannot  be  enforced  by  ordinary  writs  of 
execution,  and  that  the  remedy  of  the  creditor  is  by  mandamus 
to  compel  payment,  or  the  levy  of  a  tax  for  that  purpose. 
Questions  of  this  kind  are  influenced  much  by  local  legisla- 
tion.2 On  principle,  in  the  absence  of  statutable  provision,  it 
would  seem  to  be  a  sound  view  to  hold  that  the  right  to  con- 
tract and  the  power  to  be  sued  gives  the  creditors  a  right  to 
recover  judgments:  that  judgments  should  be  enforceable  by 
execution  against  the  strictly  private  property  of  the  corpora- 
tion, but  not  any  against  property  owned  or  used  by  the  cor- 
poration for  public  purposes,  such  as  public  buildings,  hospi- 
i/ie  said  town,"  for  the  purposes  mentioned  in  the  deed :  the  deed  then  states,  in 
substance,  that  it  is  conveyed  for  a  court  house  and  jail  to  be  erected  and 
kept  thereon,  with  a  proviso  that  if  it  ceased  to  be  used  for  such  purposes, 
the  property  was  to  re-vest  in  the  grantor :  while  the  land  was  used  by 
the  town  for  the  specified  purposes,  the  title  was  held  to  be  in  the  town, 
and  it  was  also  held  that  the  grantor  could  not  interfere  to  prevent  the 
town  from  leasing  portions  of  the  tract  not  needed  for  the  purposes  specially 
named  in  the  deed.  The  court  was  of  opinion  that  the  true  construction 
of  the  grant  was,  that  while  the  condition  on  which  the  corporation  held 
the  lot  was  not  broken,  they  had  full  dominion  over  it,  and  might  use  it  as 
they  saw  fit :    Boiling  v.  Petersburg,  8  Leigh  (Va.),  224,  1837. 

See  chapters  on  Streets  and  Dedication,  post. 

1  Holliday  v.  Frisbie,  15  Cal.  630, 1860 ;  Davenport  v.  Insurance  Company, 
17  Iowa,  276 ;  Louisville  v.  Commonwealth  (as  to  public  and  private  prop- 
erty), 1  Duvall  (Ky.),  295.  Further  see  chapters  on  Dedication  and  Man- 
damus, post.  And  an  act  of  the  legislature  of  the  state  granting  to  a  city 
certain  real  property  within  its  limits,  with  a  proviso  in  the  act  that  the 
city  shall  pay  into  the  state  treasury,  within  twenty  days  after  their  receipt, 
twenty-five  per  cent  of  all  moneys  arising  from  the  sale  or  other  disposition 
of  the  property,  gives  to  the  city  an  absolute  interest,  qualified  by  no  condi- 
tions or  trusts  attaching  to  the  property,  and  subject  to  no  specific  uses,  arid 
hence  the  property  may  be  levied  on  and  sold  under  execution :  Holliday 
v.  Frisbie,  above  cited. 

2  Crane  «.  Fond  du  Lac,  16  Wis.  196,  1862 ;  Chicago  v.  Hastey,  25  111.  595, 
1861 ;  Commonwealth  v.  Allegheny  County,  37  Pa.  St.  277,  290 ;  Commonr 
wealth  v.  Perkins,  43  Pa.  St.  400 ;  State  v.  Milwaukee,  20  Wis.  87  ;  State  v. 
Beloit,  ib.  79,  1865. 


CH.  XV.]  CORPORATE  PROPERTY.  433 

tals  and  cemeteries,  fire  engines  and  apparatus,  water  works, 
and  the  like ;  and  that  judgments  should  not  be  deemed  liens 
upon  real  property  except  when  it  may  be  taken  in  execution.1 
Outside  of  the  New  England  States  the  creditors  of  a  munici- 
pal corporation  cannot  resort  for  the  purpose  of  making  their 
debts,  to  the  private  property  of  the  inhabitants.2 

§  447.  If  the  charter  or  constituent  act  of  the  corporation 
prescribes  a  particular  mode  in  which  the  property  of  the  corpo- 
ration shall  be  disposed  of,  that  mode  must  be  pursued.  This  is 
well  illustrated  in  an  interesting  and  important  series  of  adju- 
dications in  California  known  as  the  "  City  Slip  Cases,"  in 
which,  upon  the  most  sedate  and  deliberate  consideration,  it 
was  repeatedly  held,  where  the  officers  of  the  city,  under  the 
authority  of  a  void  ordinance,  made  sales  of  real  estate  belong- 
ing to  the  city,  that  no  title  passed,  and  that  under  the  charter 
of  the  city  (which  required  sales  of  its  property  to  be  made  by 
an  ordinance  adopted  for  the  purpose,  after  advertisement  of 
the  time,  place,  and  terms  of  sale)  the  appropriation,  for  mu- 
7  icipal  purposes,  of  the  proceeds  of  the  sales,  while  it  would 
impose  on  the  city  the  liability  to  pay  back  to  the  purchasers 
the  moneys  received  from  them,  would  not  have  the  effect  to 
ratify  the  sales.3 

1  Schaffer  o.  Cadwallader,  36  Pa.  St.  126,  1860 ;  Davenport  v.  Insurance 
Company,  above  cited ;  President,  &c.  v.  Indianapolis,  12  Ind.  620 ;  Lamb  v. 
Shays,  14  Iowa,  567  ;  Cole  v.  Green,  25  111.  104 ;  Green  v.  Marks,  24  111.  221. 
Post,  chapter  on  Mandamus. 

2  Horner  v.  Coffey,  25  Miss.  (3  Cush.)  434, 1853.  The  court  refused  to 
follow  the  doctrine  laid  down  in  Beardsley  v.  Smith,  16  Conn.  368.  Post, 
Chap.  XX. 

As  to  exemption  of  municipal  revenues  from  judicial  seizure,  and  as  to 
garnishment  of  municipal  corporations,  see  ante,  pp.  112-115. 

8  McCracken  v.  San  Francisco,  16  Cal.  591, 1860;  Grojan  v.  San  Francisco, 
18  Cal.  590, 1861 ;  Piemental  v.  San  Francisco,  21  Cal.  851,  1863.  In  these 
cases,  the  principles  stated  in  the  text  are  vindicated  with  characteristic 
clearness  and  striking  logical  force  in  able  and  interesting  opinions  of  Mr. 
Chief  Justice  Meld,,  now  holding  a  seat  on  the  Supreme  Bench  of  the  United 
States.  See,  also,  Satterlee  v.  San  Francisco,  23  Cal.  314, 1863;  Herzo  v.  San 
Francisco,  33  Cal.  134, 1867.    Ante,  Sees.  373,  383,  384. 

See  ante,  Chap.  XIV.  as  to  mode  of  contracting.  Mode  of  exercising  corpo- 
rate powers:  Ante,  Chap.  V.;  post,  Chap.  XIX. 

55 


434  MUNICIPAL   CORPORATIONS,  [CH.  XV, 

§  448.  Where  property  is  held  by  the  corporation,  without  re- 
striction, it  may  doubtless  mortgage  it  to  secure  any  debt  or  obli- 
gation that  it  has  the  power  to  create  or  enter  into.  The  power 
to  mortgage,  if  not  expressly  given  nor  denied,  would  be  an 
incident  to  the  power  to  hold  and  dispose  of  property,  and  to 
make  contracts.1  Power  given  to  the,  city  of  Memphis,  in  its 
charter,  "to  hold  real,  personal,  or  mixed  property,"  and  "to 
sell,  lease,  or  dispose  of,  the  same,  for  the  use  and  benefit  of 
the  city,"  was  held  by  the  Supreme  Court  of  Tennessee  to 
confer  without  further  legislative  authority,  and  by  necessary 
implication,  the  power  upon  the  common  council  of  the  city  of 
Memphis  to  mortgage  a  large  tract  of  land  ceded  to  the  city  in 
fee  by  the  United  States,  lying  within  the  corporate  limits,  to 
secure  the  payment  of  a  large  number  and  amount  of  bonds 
to  be  issued  by  a  railroad  company,  to  aid  in  the  construction 
of  its  railroad,  one  of  whose  termini  was  on  the  bank  of  the 
river  opposite  Memphis,  the  court  regarding  this  as  a  proper 
corporation  purpose,  and  for  the  benefit  of  the  city.2  It  will 
be  seen  that  here  was  ho  special  or  express  legislative  author- 
ity to  the  city  to  aid  in  the  construction  of  the  railway,  and  it 
sought  to  aid  it  by  pledging  its  property  to  secure  bonds  issued 
by  the  railroad  company.  Without  express  authority  the  city 
could  not  have  guaranteed  the  bonds  of  the  company ;  and 
upon  the  accepted  canons  of  construction' of  municipal  pow- 
ers, the  author  cannot  concur  with  the  learned  court  in  the 
doctrine  that  the  ordinary  clause  in  the  charter  giving  the 
municipality  the  authority  to  take,  bold,  sell,  and  dispose  of, 
property,  empowered  it  to  pledge  it  as  a  security  for  the  bonds 
or  debts  of  the  railway  company.3 

§  449.  It  is  undoubtedly  competent  for  the  legislature  to 
authorize  municipal  corporations  to  pass  an  ordinance  provid- 
ing, in  all  leases  of  corporate  property,  that  if  the  rent  remain 
unpaid,  the  corporation  may  terminate  the  lease  by  a  resolu- 
tion to  that  effect,  in  which  case  equity  could  not,  at  least  or- 

1  As  to  power  to  mortgage  real' estate:  Middleton-  Bank  v.  Dubuque,  15 
Iowa,  394;  Braham  v.  San  Jose,  24  Cal.  585;  Gordon  v.  Preston,  1  Watts 
(Pa.),  385;  Goodwin  v.  McGehee,  15  Ala.  233,  1849. 

2  Adams  v.  Railroad  Company,  2  Coldw.  (Tenn.)  645, 1866. 

3  See  ante,  Chap.  VI.  pp.  144-150.    Ante,  p.  386,  Sec.  393. 


CH.  XV.]  CORPORATE  PROPERTY.  435 

diuarily,  relieve  against  the  forfeiture.  So  such  a  corporation 
may>  by  stipulation  in  the  lease,  provide  for  such  a  forfeiture, 
hut  in  this  case  the  right  to  forfeit  owes  its  existence  to  the 
convention  of  the  parties,  and  not  to  the  action  of  the  corpora- 
tion in  its  political  or  legislative  capacity;  and  where  the  right 
to  forfeit  rests  upon  contract,  equity  may  relieve  against  it  the 
same  as  if  the  contract  was  made  between  private  individuals.1 

§  450.  Conveyances  of  real  estate  should,  in  general,  be  exe- 
cuted in  the  corporate  name  and  under  the  corporate  seal.2  If  the 
constituent  act  or  charter  prescribes  the  conditions  upon  which 
the  conveyance  ol  its  real  estate  shall  be  made — as,  for  exam- 
ple, if  it  requires  the  previous  consent  of  a  majority  of  the 
legal  voters,  a  conveyance  without  such  consent  is  void.3  A 
conveyance  of  real  estate,  regular  on  its  face,  and  under  the 
corporate  seal,  executed  by  a  municipal  corporation  having 

1  Taylor  v.  Carondeiet,  22  Mo.  105,  1855,  where  this  subject  is  very  ably 
discussed.  The  dissenting  opinion  of  Leonard,  J.,  in  the  special  case  in 
judgment,  probably  rests  upon  the  most  tenable  ground.  See,  also,  "Wood- 
son v.  Skinner  (pow,er  to  annul  sale),  2,2  Mo.  13;  State  of  Maryland  v.  Rail- 
road Company,  3  How.  (U.  S,)  534. 

Power  to  lease:  Bush  »,  Whitney,  1  Chip.  (Vt.)  369;  Angell  &  Ames,  Sec. 
191;  Grant,  Corp.  146;  Taylor  v.  Carondelet,  22  Mo.  105.  Lease  valid, 
though  it  does  not  use  precise  corporate  name:  McDonald  v.  Schneider,  27 
Mo.  405.  No  particular  language  essential:  Poole  v.  Bentley,  12  East,  168. 
Estoppel  of  lessee  to  deny  title  of  corporation  lessor:  St.  Louis  v.  Merton,  6 
Mo.  476.  ' 

As  to  necessity  of  seal,  see  Index, —  Seal :  Pennington  v.  Tanier,  12  Queen's 
B.  1011 ;  Grant,  Corp.  148.     Ante,  Chaps.  VIII.  and  XIV. 

2  Kent  Com.  291.  As  to  name  and  misnomer,  see  ante,  Chap.  VIII.;  also, 
De  Zeng  «.  Beekman,  2  Hill  (N,  Y,),  489,  1842;  Miners'  Ditch  Company  v. 
Zellerbach,  37  Cal.  543,  1869. 

"  In  general,  corporations  must  take  and  convey  their  lands  and  other  prop- 
erty in  the  same  manner  as  individuals;  the  laws  relating  to  the  transfer  of 
property  being  equally  applicable  to  both : "  Angell  &  Ames,  Corp.  Sec.  193. 
3  Sill  v.  Lansingburg,  16  Barb.  107 ;  Middleton  Bank  v.  Dubuque,  15  Iowa, 
394.  In  Vermont,  the  selectmen  of  the  several  towns  in  which  there  are 
Glebe  lands,  are  empowered  by  statute  to  lease  them.  This  was  held  to  be 
the  extent  of  their  authority,  and  an  absolute  conveyance  was  utterly  void, 
neither  conveying  title  to  the  grantee  nor  affecting  the  rights  of  the  town: 
Bush  v.  Whitney,  1  Chip.  (Vt.)  369,  1821. 

As  to  liability  on  covenants  of  warranty  in  conveyances  of  real  estate,  to 
•which  the  municipality  had  no  title  or  right  to  convey :  Findler  v.  San 
Francisco,  13  Cal.  534. 


436  MUNICIPAL   CORPORATIONS.  [CH.  XV. 

the  power  to  dispose  of  its  property,  will  be  presumed  to  have 
been  executed  in  pursuance  of  that  power,  and  hence  it  is  un- 
necesssary  for  the  grantee  or  party  claiming  under  it,  to  pro- 
duce the  special  resolution  or  ordinance  authorizing  its  execu- 
tion.1 

§  451.  A  town  cannot,  without  express  authority,  pass  the 
legal  title  to  lands  by  a  vote,  and  when  conveyed  by  an  agent 
under  the  authority  of  a  vote,  regularly,  the  deed  should  be  in 
the  name  of  the  principal.2  A  corporation  in  North  Carolina 
was  the  owner  of  the  land  on  which  the  town  was  laid  out; 
and  between  front  street  and  tbe  water  of  the  sound  there  was 
a  small  strip  of  land.  After  the  town  was  laid  out,  the  corpo- 
ration passed  this  ordinance :  "  Ordered,  That  for  the  future, 
whatever  small  strips  of  land  are  to  be  found  between  the  out- 
ward line'  of  front  street  and  the  water  shall  be  the  property 
of  the  person  owning  the  front  lot  on  the  opposite  side  of  the 
street."    In  ejectment  by  the  corporation,  it  was  held  that  this 

1  Jamison  v.  Fopiana,  43  Mo.  565,  1869;  Swartz  v.  Page,  13  Mo.  603,  1850; 
Choquette  v.  Barada,  33  Mo.  249,  1862;  Flint  v.  Clinton  County,  12  N.  H. 
430.    See  Hart  v.  Stone,  30  Conn.  94. 

Conveyances  of  real  property  by  the  officers  of  a  municipal  corporation 
must  be  made  by  virtue  of  a  special  authority  for  that  purpose :  Merrill  v 
Burbank,  23  Maine,  538,  1844.  How  given:  Clark  v.  Pratt,  47  Maine,  55 ; 
Hascard  v.  Somamy,  Freem.  504;  Grant,  Corp.  146.  Requisites  and  proof  of 
corporate  conveyances:  Osborn  v.  Tunis,  1  Dutch.  (N.  J.)  633,  658;  Lovett  v. 
Steam,  &c.  Association,  6  Paige,  54;  Hamilton  v.  Railroad  Co.  9  Ind.  359; 
Middleton  Bank  v.  Dubuque  (deed  by  mayor  pro  tempore),  19  Iowa,  467; 
Gourley  v.  Hawkins,  2  Iowa,  75. 

2  Cofran  v.  Cochran,  5  N.  H.  458,  1831 ;  Coburn  v.  Ellemwood,  4  N.  H.  99, 
102,  and  cases  cited.  As  to  title  under  a  vote,  where  possession  is  taken, 
see  Copp  v.  Neal,  7  N.  H.  275,  278,  and  authorities  cited.  In  Ward  v.  Bar- 
tholomew, 6  Pick.  409,  it  was  held  that  a  conveyance  of  land  by  an  individ- 
ual as  an  agent  of  the  commonwealth  under  a  resolve  authorizing  him  to 
convey,  might  be  sufficient  even  if  the  deed  was  executed  in  the  name  of 
the  agent.  And  in  Cofran  v.  Cochran,  supra,  it  was  determined  that  from  long 
usage,  and  in  view  of  the  great  public  mischief  which  would  be  produced 
by  a  contrary  holding,  land  might  be  conveyed  by  a  deed  in  the  name  of  a 
duly  authorized  agent  of  the  town.  This  decision  is  expressly  put  upon 
the  maxim  "  Communis  error  facit  jus."  Special  legislative  authority  to  cer- 
tain "trustees"  (declared  to  be  abody  corporate)  to  sell  alotis  well  executed 
by  a  deed  in  which  the  grantors  describe  themselves  properly  as  the  "trus- 
tees," and  then  sign  and  seal  the  conveyance  in  their  individual  names: 
De  Zeng  v.  Beekman,  2  Hi;ll  (N,  y.),  489, 1842. 


CH.  XV.]  CORPORATE  PROPERTY.  437 

ordinance  did  not  operate  as  a  deed  to  pass  the  title  :  first,  for 
the  want  of  the  seal  of  the  grantors  ;  second,  for  the  want  of  a 
consideration ;  and  third,  for  the  want  of  delivery.  Not  only 
so,  but  it  was  held  to  be  so  obviously  defective  as  a  convey- 
ance as  not  to  give  the  "  color  of  title  "  to  the  defendant,  neces- 
sary (under  the  statute  and  decisions  of  North  Carolina)  to 
support  an  adverse  possession.1 

1  Beaufort  v.  Duncan,  1  Jones  (N.  C),  Law,  239, 1853.  But  a  release  by  a 
municipal  corporation  of  a  right  in  real  property,  by  ordinance  and  not  by 
deed,  may  be  enforced  in  equity,  when  within  the  scope  of  the  corporate 
power,  and  the  releasee  has  paid  the  consideration,  or  entered  into  posses- 
sion and  made  valuable  improvements  on  the  faith  of  it :  Grant  v.  Daven- 
port, 18  Iowa,  179,  obiter,  per  Wright,  C.  J. 


438  MUNICIPAL   CORPORATIONS.  [CH.  XVI. 


CHAPTER   XVI. 


Eminent  Domain. 

1  452.  Among  the  important  powers  usually  conferred" 
upon  municipal  corporations  and  deserving  separate  treatment,. 
is  the  authority  to  exercise,  by  delegation  from  the  legislature, 
the  right  of  Eminent  Domain ;  that  is,  eompulsorily  to  take 
private  property,  on  making  compensation  in  the  prescrihed 
mode,  for  designated  municipal  or  public  purposes.  In  this 
chapter  the  general  nature  of  the  power;  the  constitutional 
restrictions  upon  it ;  the  principles  which  govern  the  construc- 
tion and  application  of  the  legislative  authority  necessary  to 
its  existence  and  exercise  by  public  agencies ;  the  mode  and 
measure  of  compensation  to  the  property  owner,  will  be  con- 
sidered with  special  reference  to  the  power  and  the  purposes 
for  which  it  is  eommonly  delegated  to  municipal  corporations.1 

§  453.  Social  duties  and  obligations  are  paramount  to  indi- 
vidual rights  and  interests.  Private  rights  not  under  the 
shield  of  the  organic  law  must  yield  when  they  come  in  con- 
flict with  public  necessity  or  the  general  good.  The  maxim, 
mlus  popuU  suprema  lex,  has  an  important  meaning  in  its  appli- 

1  In  the  tenth  chapter  of  the  valuable  work  of  Judge  Jtedfielfl  on  the  Law 
■of  Railways,  and  particularly  in  the  last  edition,  the  right  of  Eminent  Do- 
main, in  connection  with  Railways,  is  exhaustively  treated,  ^ind  may  be 
•usefully  consulted  by  whoever  desires  to  have  a  view  of  the  present  state 
.of  time  English  and  American  law  upon  almost  any  hr^nch  of  this  interest- 
ing inquiry.  The  learned  author  does  not  confine  his  consideration  of  the 
subject  to  its  hearings  on  railways,  but  the  nature  of  the  right,  the  limita- 
tions upon  its  exercise,  the  mode  of  procedure,  the  time  when  compensation 
is  to  be  made,  and  the  rules  to  measure  its  amqunt  are  clearly  stated  and 
fully  illustrated. 

In  'ljiji?  (excellent  work  on  GonstitutJQnal  Limitations,  chapter  fifteen, 
Judge  Gooley  has  presented  th$  subject,  particularly  in  its  constitutional 
aspects,  in  a  manner  extaejnely  satisfactory.  Mr.  Sedgwick's  view,  although 
less  practical,  will  be  found,  to  be  of  grgat  interest  and  value  :  Sedgwick 
0n  Stat,  and  Const.  Law,  498 — 5§4. 


CH.  XVI.]  EMINENT   DOMAIN.  439 

cation  to  private  rights,  and  in  limiting  the  absoluteness  of  any- 
possible  ownership  of  private  property.  The  legislature  as  the 
authoritative  representative  of  the  public,  and  the  constituted 
judge  of  what  is  demanded  by  the  general  weal,  has  the  right 
to  say,  under  such  constitutional  restrictions  as  may  exist  in 
the  particular  state,  to  every  private  proprietor,  "the  public 
needs  of  your  property  thus  much,"  and  the  individual  must 
submit.  This  is  a  right  inherent  in  every  government. 
It  is  a  tremendous  power,  and  one  which  is  without  theoretical 
limits,  and  indeed,  without  any  legal  limitations  except  such 
as  may  exist  in  written  organic  restraints  upon  legislative  ac- 
tion. It  has,  in  addition,  practical  limitations  in  the  sense  of 
justice,  which  ever  prevails  in  enlightened  communities,  and 
which  legislators  cannot  for  any  considerable  period  effectually 
or  safety  disregard ;  and  experience  has  shown  that  there  is  a 
point  beyond  which  no  government  can  press  its  demands 
upon  its  subjects  or  citizens  and  continue  to  exist.  One  branch 
of  this  governmental  prerogative  is  known  by  the  name  of 
Taxation,  which,  in  its  application  to  municipalities,  will  be 
noticed  in  another  chapter ;  and  the  other  arm  of  this  trans- 
cendent and  Underlying  authority  is  now  familiarly  known  as 
the  power  of  Eminent  Domain,  by  which  is  meant  the  right  of 
every  government  to  appropriate,  otherwise  than  by  taxation 
and  its  police  authority  (which  are  distinct  powers),  private 
property  for  public  use.1 

§  454.  In  the  constitution  of  the  United  States,  and  in  the  con- 
stitutions of  the  different  states,  there  is  a  limitation  upon  the 
power  of  eminent  domain,  usually  expressed  in  substantially 
these  words:  "  Private  property  shall  not  be  taken  for  public 
use  without  just  compensation."  In  some  of  the  constitutions 
there  are,  in  addition,  special  provisions  of  more  recent  origin, 
as  to  the  mod«  of  ascertaining  the  amount  of  the  compensation 
and  the  time  and  manner  of  payment.  Full  treatment  of  this 
subject  in  its  constitutional  and  other  aspects  would  not  be 
appropriate  to  the  present  work,  and  our  consideration  of  it 

1  As  to  the  phrase  Eminent  Domain,  see  Mr.  Justice  Campbell's  article  on 
the  "Taking  of  Private  Property  for  Purposes  of  Utility  : "  Vol.  I.  No.  2, 
Bench  and  Bar,  p.  112. 


440  MUNICIPAL    CORPORATIONS.  [CH.  XVI. 

will  accordingly  be  limited  to  a  statement  of  the  general  prin- 
ciples relating  to  it,  and  a  reference  to  the  cases  which  illus- 
trate the  power  as  exercised  by  municipal  corporations  under 
delegated  legislative  authority.1 

§  455.  Mr.  Sedgwick  sums  up  his  interesting  examination  of 
the  limitatiovs  upon  the  power  of  the  legislature  over  the  appro- 
priation of  private  property  to  public  uses,  and  his  statement 
of  the  result  will  serve  as  an  appropriate  introduction  to  our 
consideration  of  the  subject  in  its  application  to  municipal  cor- 
porations. He  says:  "  If  the  brief  and  sweeping  clause,  'Pri- 
vate property  shall  not  be  taken  for  public  use  without  just 
compensation,'  be  made  to  express  the  modifications  and  qual- 
ifications which  construction  has  inserted  in  it  and  added  to  it,  it 
will  stand  nearly  as  follows :  Private  property  shall  hit  no  case  be 
taken  lor  -private  use.  Private  property  may  be  taken  for  public 
use  in  the  exercise  of  the  general  police  powers  of  the  state,  or 
of  taxation,  without  making  compensation  therefor.  And  the 
power  of  taxation  includes  the  power  of  charging  the  expense 
of  local  improvement  exclusively  upon  those  immediately  ben- 

1  The  fifth  article  of  the  amendments  of  the  constitution  of  the  United 
States  was  intended  to  prevent  the  general  government  from  taking  private 
property  for  public  use  without  just  compensation,  and  was  not  intended  a* 
a  restraint  upon  the  state  governments:  Barron  v.  Baltimore,  7  Pet.  243, 
1833;  Withers  v.  Buckley,  20  How.  (U.  S.)  84, 1857.  The  right  of  eminent 
domain  residing  in  a  state,  says  the  Supreme  Court  of  the  United  States,  is 
an  independent  power,  and  all  property  is  held,  and  all  contracts  are  made 
subject  to  this  right.  Therefore,  the  exercise  of  this  right  by  the  state  does 
not  impair  the  obligation  of  contracts  within  the  meaning  of  the  prohibi- 
tion of  the  constitution  of  the  United  States.  Hence  a  toll  bridge  owned 
by  a  private  corporation,  chartered  by  the  state  for  that  purpose,'  may, 
under  the  right  of  eminent  domain,  and  under  a  general  law  of  the  state 
authorizing  the  act,  be  condemned  and  taken  as  part  of  a  public  road,  com- 
pensation being  made  to  the  corporation  in  the  same  manner  as  to  natural 
persons.  Such  an  exercise  of  the  right  of  eminent  domain  does  not  impair 
the  obligation  of  the  contract  between  the  bridge  corporation  and  the  state: 
West  River  Bridge  Company  v.  Dix,  6  How.  (U.  S.)  507,  1848,  affirming  judg- 
ment of  the  Supreme  Court  of  Vermont;  Railroad  Company  v.  Railroad 
Company,  13  How.  71.  The  same,  principle  has  been  frequently  declared  by 
the  state  courts:  Railroad  Company  v.  Kennedy,  39  Ala.  (N.  S.)  307 ;  Toll 
Bridge  Company  v.  Railroad  Company,  17  Conn.  40 ;  ib.  454 ;  Railroad  Com- 
pany v.  Railroad  Company,  2  Gray,  1 ;  Bridge  Company  v.  Lowell,  4  Gray, 
474;  Bridge  Company  v.  Clarksville,  1  Sneed,  176;  Armington  v.  Barnet,  15 
Vt.  745;  Redfield  on  Railways,  Sec.  70. 


CH.  XVI.]  EMINENT   DOMAIN.  441 

efited  thereby.  Private  property  may  also  be  taken  for  public 
use  in  the  exercise  of  the  power  of  eminent  domain,  but  not 
without  just  compensation  being  made  or  provided  for  before 
the  taking  is  absolutely  consummated.  The  right  of  com- 
pensation, however,  does  not  attach  in  cases  where  the  value 
of  property  is  merely  impaired  and  title  to  it  not  divested;  nor 
does  it  exist  in  cases  where  the  right  to  the  property  taken  is 
not  absolutely  vested  at  the  time  of  the  legislative  act  affecting 
it.  This  is  substantially  the  form  that  the  constitutional  pro- 
vision has  assumed  in  the  hands  of  the  courts;  and  upon  a 
careful  examination  of  the  process  by  which  this  result  has 
been  arrived  at,  it  must  be  admitted  that  in  practice  our  con- 
stitutional guarantees  are  very  flexible  things,  and  that  the 
judicial  power  exerts  an  influence  in  our  system  which  makes 
the  subject  of  interpretation  one  of  the  first  magnitude."1 

§  456.  As  the  legislature  is  the  sole  j'idge  of  the  necessity 
which  requires  or  renders  expedient  the  exercise  of  the  power 
of  eminent  domain  without  the  owner's  consent,  so  it  is  the 
exclusive  judge  of  the  amount  of  land  or  the  estate  in  land 
which  the  public  end  to  be  subserved  requires  shall  be  taken. 
But  as  the  right  originates  in  necessity,  so  it  is  limited,  by  it. 
The  principle  and  its  limitations  have  found  interesting  illus- 
trations in  cases  which  we  shall  notice,  arising  under  powers 
conferred  upon  municipalities  to  enable  them  to  execute  cer- 
tain public  purposes.  The  legislature  has  the  constitutional 
power  expressly  to  authorize  a  municipal  corporation  eompvl- 
sority  to  acquire  the  absolute  fee  simple  to  lands  of  private  per- 
sons, required  for  public  use,  upon  the  payment  of  a  just  com- 
pensation.2   Accordingly,  a  statute   "to  enable"   a  city   "to 

1  Sedgwick,  Stat,  and  Const.  Law,  533,  534.  It  is  not  competent  for  the 
legislature  to  provide  if  a  person  shall  make  improvements  upon  ground  which 
will  be  embraced  in  a  street,  if  subsequently  laid  out  and  extended,  that  he 
shall  not,  if  such  street  is  subsequently  laid  out,  be  entitled  to  damages  for 
such  improvement.  Such  a  provision  is  unconstitutional,  because  it  de- 
prives the  owner  of  the  use  of  his  land,  without  compensation :  Moale  v. 
Baltimore,  5  Md.  314, 1854. 

2  Heyward  v.  Mayor,  &c.  of  New  York,  7  N.  Y.  (3  Seld.)  314, 1852,  affirm- 
ing S.  C.  8  Barb.  486;  distinguished  from  Embury  v.  Connor,  3  Comst.  511, 
where  an  unnecessary  amount  was  sought  to  be  taken ;  S.  P.  Dingley  v.  Bos- 
ton, 100  Mass.  544, 1868.    So  in  North  Carolina  it  is  held  that  the  legislature 

56 


442  MUNICIPAL   CORPORATIONS.  [CH.  XVI. 

abate  a  nuisance  and  for  the  preservation  of  the  public  health," 
authorized  the  city  to  "purchase  or  otherwise  take  lands" 
within  a  large  district,  on  payment  of  damages  to  the  owners, 
and  which  directed' the  city  to  raise  and  drain  the  same,  so  as 
"to  abate  the  present  nuisance  thereon,"  and  declaring,  further, 
that  the  "title  to  all  land  so  taken  shall  vest  in  the  city,"  was 
held  to  vest  the  fee  of  such  lands  in  the  city,  and  was  not  uncon- 
stitutional, because  it  authorized  the  taking  of  a  greater  inter- 
est in  the  land  than  was  necessary,  nor  as  an  attempt  to  exer- 
cise judicial  power.1  To  land  the  fee  simple  of  which  is  thus 
acquired  by  a  municipal  corporation,  its  title  is  perfect,  and  it 
does  not  revert  when  sold  by  the  corporation,  or  when  the  pub- 
lic good,  in  the  opinion  of  the  corporate  authorities,  requires 
the  land  to  he  used  for  other  purposes  than  those  for  which  it 
was  originally  obtained.2  1 

§  457.  The  cases  which  have  established  that  the  legislature 
may,  if  it  sees  proper,  authorize  the  compulsory  appropriation 
of  the  fee,  are  to  be  distinguished  from  those  in  which  it  has 
been  held  that  no  more  in  amount  of  private  property  can  be  taken 
than  the  legislature  has  declared  to  be  necessary  to  the  accom- 
plishment of  the  public  purpose  in  view,  even  although  com- 
pensation be  made.  It  was  accordingly  decided  in  South  Car- 
olina, on  sound  principles,  that  the  state  cannot  authorize  part 
of  a  lot  to  be  taken  for  a  street,  and,  in  addition,  compel  the 
owner,  against  his  will,  to  part  with  the  balance  for  the  bene- 
fit, emolument,  or  private  purposes  of  the  corporation,  since, 

may  authorize  not  simply  the  use,  but  the  entire  interest  of  the  owner  to  be 
taken  for  public  use,  if  it  deem  the  public  exigency  requires  it:  Railroad 
Company  v.  Davis,  2  Dev.  &  Bat.  (Nor.  Car.)  Law,  451,  1837 ;  De  Varaigne 
.v.  Fox,  2  Blatchf.  C.  C.  95;  Kane  v.  Baltimore,  15  Md.  240,  arguendo.  See, 
also,  Moore  v.  Same,  8  Md.  HO  (power  pver  dower  interest) ;  Matter  of  John 
and  Cherry  Streets,  19  Wend.  650  (as  to  reverter  of  discontinued  streets  to 
adjacent  owners) ;  Kimball  v.  Kenosha,  4  Wis.  321.    Infra,  Sec.  468. 

1  Dingley  v.  Boston,  100  Mass.  544,  1868. 

2  Heyward  v.  Mayor,  &c.  of  New  York,  7  N.  Y.  (3  Seld.)  314,  1852;  De 
Varaigne  v.  Fox,  2  Blatchf.  C.  &  95,  1848;  Heirs  of  Reynolds  v.  Commission- 
ers, &c.  5  Ohio,  204,  1831 ;  Le  Clercq  v.  Gallipolis,  7  Ohio,  part  I.  218, 1835. 
See,  also,  chapter  on  Corporate  Property,  ante,  arid  on  Dedication,  post. 


CH.  XVI.]  EMINENT    DOMAIN.  443 

in  the  opinion  of  the  court,  such  an  act  "  disseizes  or  deprives" 
the  owner  of  his  property,  "without  the  judgment  of  his 
peers,"  and  contrary  "to  the  law  of  the  land."  1 

§  458.  And  the  same  principle  was  subsequently  declared  by 
the  Supreme  Court  and  by  the  Court  of  Appeals  of  the  state  of 
New  York,  and  of  the  state  of  Maryland.2  The  constitution 
of  the  state  of  New  York  contained  the  provision  that  "  no 
person  shall  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law;  nor  shall  private  property  betaken  for 
public  use  without  just  compensation."  The  legislature  enact- 
ed, with  reference  to  the  city  of  New  York,  that  whenever  pari 
only  of  a  lot  should  be  required  for  a  street,  the  commission- 
ers for  assessing  compensation  might,  if  they  deemed  it  expe- 
dient, include  the  whole  lot,  and  that  the  part  not  required  for 
the  street  should,  upon  confirmation  of  their  report,  be  vested 
in  fee  in  the  city,  with  authority  to  appropriate  it  to  public 
uses,  or  if  not  thus  appropriated,  to  sell  it.  The  court  inclined 
to  the  opinion,  that  the  legislature  did  not  intend  by  this  pro- 
vision to  authorize  the  compulsory  taking  of  more  land  than 
the  public  needed,  and  that  the  statute  should  be  construed  so 
as  to  require  the  owner's  consent  to  the  appropriation  of  the  part 
not  required  for  the  public  use.  But  the  court  expressly  de- 
cided that  if  the  statute  did  intend  to  authorize  the  compulso- 
ry taking  of  the  whole,  when  part  only  was  required  for  the 
use  of  a  street,  it  would  be  in  conflict  with  the  above  provision 
of  the  constitution  of  the  state  guaranteeing  protection  to  pri- 
vate property.  It  was,  however,  further  adjudged,  that  the 
owner's  consent  to  the  appropriation  would  remove  all  objec- 
tions on  the  ground  of  the  unconstitutionality  of  the  statute ; 

1  Dunn  v.  Charleston,  Harper  (South  Car.),  Law,  189,  1824.  This  decision 
is  right.  Other  cases  in  South  Carolina,  holding  that  private  property  may 
he  taken  for  streets,  roads,  &c.  against  the  owner's  consent  and  vnthout  com- 
pensation (State  v.  Dawson,  3  Hill  (South  Car.),  100,  and  cases  cited),  are  not 
elsewhere  regarded  as  law :  Sedgwick  on  Stat,  and  Const.  Law,  494.  In 
Patrick  v.  Commissioners,  4  McCord,  540, 1828,  it  was  held  that  the  legisla- 
ture might  authorize  a  street  to  be  laid  out  on  private  property  without 
making  compensation. 

2  Albany  Street  (in  matter  of)  11  Wend.  148,  1834;  Embury  v.  Conner,  3 
N.  Y.  (3  Comst.)  511,  1850;  reversing  S.C.  2  Sandf.  98;  Baltimore  v.  Clunet 
23  Md.  449,  1865. 


444  MUNICIPAL   CORPORATIONS.  [CH.  XVI. 

that  such  consent  need  not  be  in  writing,  and  that  the  re- 
ceipt by  the  owner  of  damages  allowed  by  the  commissioners, 
is  evidence  of  his  consent.1 

1  Referring  to  this  statute,  in  Embury  v.  Conner,  supra,  Jewett,  J.,  deliv- 
ering the  opinion  of  the  Court  of  Appeals,  says :  "  It  needs  no  argument  to 
show  that  the  end  and  design  of  this  section  was  not  to  take  private  prop- 
erty for  the  use  of  the  public.  It  manifestly  goes  upon  the  ground  that  the 
property  so  authorized  to  be  taken  is  not  wanted  for  the  purpose  of  form- 
ing or  improving  a  street,  the  object  in  view  for  which  the  proceedings  are 
instituted.  In  the  Matter  of  Albany  Street,  11  Wend.  148,  the  constitution- 
ality of  this  enactment  came  directly  under  the  consideration  of  the  Su- 
preme Court,  on  application  to  confirm  the  report  of  the  commissioners  in 
that  matter.  The  court  then  held,  that  if  that  provision  was  intended 
merely  to  give  to  the  corporation  capacity  to  take  property  under  such  cir- 
cumstances, with  the  consent  of  the  owner,  and  then  to  dispose  of  it,  there 
could  be  no  objection  to  it.  But  if  it  was  to  be  taken  literally,  that  the 
commissioners  might,  against  the  consent  of  the  owner,  take  the  whole  lot, 
when  only  a  part  was  required  for  public  use,  and  the  residue  to  be  applied 
to  private  use,  it  assumed  a  power  which  the  legislature  did  not  possess. 

"  This  decision  went  mainly  upon  the  application  contained  in  the  last 
member  of  the  clause  of  section  7  of  Article  7  of  the  constitution  of  1821, 
that '  No  person  shall  be  deprived  of  life,  liberty,  or  property,  without  due 
process  of  law;  nor  shall  private  property  be  taken  for  public  use  without 
just  compensation.'  Chief  Justice  Savage  said:  'The  constitution,  by 
authorizing  the  appropriation  of  private  property  to  public  use,  impliedly 
declares,  that  for  any  other  use,  private  property  shall  not  be  taken  from 
one  and  applied  to  the  private  use  of  another.'  In  Bloodgood  «.The  Mo- 
hawk &  Hudson  Railroad  Company,  18  Wend.  59,  Mr.  Senator  Tracy  said 
the  words  should  be  construed,  '  As  equivalent  to  a  constitutional  declara- 
tion that  private  property,  without  the  consent  of  the  owner,  shall  be  taken 
only  for  the  public  use,  and  then  only  upon  a  just  compensation.'  Bronson, 
J.,  in  Taylor  v.  Porter,  4  Hill,  147,  in  reference  to  this  question,  said,  that 
although  he  felt  no  disposition  to  question  the  soundness  of  these  views, 
yet  that  it  seemed  to  him  that  the  case  stood  stronger  upon  the  first  mem- 
ber of  the  clause, '  No  person  shall  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law.'  That  the  words,  'due  process  of  law,'  in  that 
place,  could  not  mean  less  than  a  prosecution  or  suit  instituted  and  con- 
ducted according  to  the  prescribed  forms  and  solemnities  for  ascertaining 
guilt,  or  determining  the  title  to  property.  The  same  doctrine  was  held  in 
the  Matter  of  John  and  Cherry  Streets,  19  Wend.  659,  and  by  the  chancel- 
lor in  Varick  v.  Smith,  5  Paige,  137,  and  was  admitted  by  all  the  members 
of  the  court  for  the  correction  of  errors,  whose  opinions  have  been  reported 
in  the  case  referred  to,  of  Bloodgood  v.  The  Mohawk  &  Hudson  Railroad 
Company.  I  think  these  decisions  should  be  regarded  as  having  settled  the 
point,  that  a  statute  is  unconstitutional  and  void  which  authorizes  the 
transfer  of  one  man's  property  to  another  without  the  consent  of  the  owner, 
although  compensation  is  made,    The  late  Chancellor  Kent,  in  reference  to 


CH.  XVI.]  EMINENT    DOMAIN.  445 

§  459.  As  dower  is  not  the  result  of  contract,  but  is  a  positive 
legislative  institution,  it  is  constitutionally  competent  for  the 
legislature  to  authorize  lands  to  be  taken  by  a  municipal  cor- 
poration for  a  market,  street,  or  other  public  use,  upon  an  ap- 
praisement and  payment  of  their  value  to  the  husband,  the 
holder  of  the  fee,  and  such  taking  and  payment  will  confer  an 
absolute  title  divested  of  any  inchoate  right  of  dower.1  Nor  is 
a  widow  dowable  in  lands  dedicated  by  her  husband  in  his  life- 
time to  the  public,  where  the  dedication  is  complete  or  has 
been  accepted  and  acted  upon  by  the  municipal  authorities. 
Therefore,  where  the  husband  agreed  to  open  a  street  through 
his  property  upon  which  a  market-house  was  to  be  erected, 
and  which  was  accordingly  erected  under  an  ordinance  of  the 
city,  his  widow  was  decided  not  to  be  entitled  to  dower  in  the 

the  decision  in  Taylor  v.  Porter,  says :  '  I  apprehend  that  the  decision  of 
the  court  was  founded  on  just  principles,  and  that,  taking  private  property 
for  private  uses  without  the  consent  of  the  owner,  is  an  abuse  of  the  right  of 
eminent  domain,  and  contrary  to  fundamental  and  constitutional  doctrine 
in  the  English  and  American  law  (2  Kent  Com.  5th  ed.  note  c,  340).  But 
it  is  insisted,  that  as  the  enactment  is  only  held  to  be  void  on  the  ground 
that  it  takes  private  property  for  private  uses  against  the  owner's  consent, 
if  the  consent  be  given,  all  objection  on  the  ground  of  unconstitutionality 
is  removed.  The  decisions  to  which  I  have  referred  proceed  upon  that 
principle,  and  Mr.  Justice  Bronson,  in  Taylor  v.  Porter,  in  terms,  concedes 
that  the  objection  has  no  application  when  the  owner  consents.  If  we 
read  the  statute  in  question,  with  the  proviso  that  the  owner  consent,  and 
I  think  we  should,  that  consent  removes  all  obstacles,  and  lets  the  statute 
in  to  operate  the  same  as  if  it  had  in  terms  contained  the  condition." 

That  such  is  the  effect  of  consent,  see  Sedw.  on  Stat,  and  Const.  Law,  111, 
and  Mr.  Justice  Cooley's  opinion,  Const.  Lim.  541,  note;  Baltimore  v.  Clunet, 

23  Md.  449,1865. 

That  voluntary  acceptance  of  money,  with  knowledge  of  all  the  facts,  in  the 
absence  of  fraud  or  mistake  of  fact,  will  estop  the  party  so  accepting  from 
afterwards  objecting:    See  Pursley  v.  Hays,  17  Iowa,  310;  Deford  v.  Mercer, 

24  Iowa,  118;  2  Smith  Lead.  Cas.  (5  Am.  Ed.)  662;  Commonwealth  v.  Sher- 
man's Administrators,  18  Pa.  St.  343 ;  Burns  v.  Railroad  Company,  9  Wis. 
450;  Smith  v.  Warden,  19  Pa.  St.  426;  Thillate  v.  Stanley,  14  Ind.  409,  412. 
Actual  receipt  of  damages  by  party  entitled  is  a  waiver  of  delay  in  deposit- 
ing or  paying  it,  and  a  ratification  of  the  proceedings  of  the  city  in  laying 
out  the  streets  for  public  use:  Hawley  v.  Harrall,  19  Conn.  142, 151. 

Confirmation  of  defective  proceedings  by  legislative  authority :  Yost's  Re- 
port, 17  Pa.  St.  524;  Bennett  v.  Fisher,  26  Iowa,  497, 1868;  compare,  Balti- 
more v.  Horn,  26  Md.  194, 1866.    Ante,  p.  92. 

1  Moore  v.  Mayor,  &c.  Of  New  York,  8  N.  Y.  (4  Seld.)  110, 1853. 


446  MUNICIPAL    CORPORATIONS.  [CH.  XVI. 

ground  covered  by  the  market-house.  The  court  was  of 
opinion  that  the  case  was  not  to  be  distinguished  from  the  or- 
dinary one  of  a  condemnation  of  land  to  public  uses,  and  that 
such  uses  are  inconsistent  with  the  existence  of  private  rights 
which  could  be  enjoyed  only  by  interfering  with  the  rights 
of  the  public.1 

§  460.  It  is  agreed  that  individual  property  can  be  eom- 
pulsorily  appropriated  by  the  public  only  for  -public  use.2  What 
is  a  public  use  has,  in  some  aspects  of  the  subject,  given  rise 
to  much  controversy,  particularly  in  reference  to  the  delegated 
exercise  of  the  power  by,  or  for  the  benetit  of,  private  corpora- 
tions, companies,  and  individuals.  Since  municipal  corpora- 
tions are  instituted  for  public  purposes,  authority  to  take 
property  in  order  to  carry  out  their  chartered  powers  is  not 
often  open  to  the  objection  that  the  use  is  private  and  not  pub- 
lic. Municipal  uses  proper  are  public  uses.  Highways  are 
conceded  to  be,  and  manifestly  are,  matters  of  public  concern, 
and  hence  the  condemnation  of  property  for  streets,  alleys,  and 
public  ways  is,  undeniably,  for  a  public  use.3 

§  461.  The  mere  fact  that  individuals  have  subscribed  money, 
or  given  a  bond  to  a  city  or  town,  to  contribute  towards  the 
expense  of  laying  out  or  altering  a  street,  will  not  vitiate  the 
proceedings,  or  afford  evidence  that  the  land  was  taken  for  the 
accommodation  of  private  individuals,  and  not  for  public  uses.4 
But  if  such  a  bond  was  made  the  basis  of  the  proceedings,5  or 

1  Gwynne  v.  Cincinnati,  3  Ohio,  25,  1827.     Post,  Sec.  498. 

3  One  of  the  most  acute  and  able  of  American  jurists  maintains,  in  an  in- 
teresting article,  that  the  right  to  take  private  property  for  purposes  of 
utility  rests  not  in  public  uses,  but  on  public  policy,  or  the  law  of  necessity. 
Mr.  Justice  Campbell,  Vol.  I.  No.  2,  p.  97,  Bench  and  Bar.  See,  in  same  pub- 
lication, Vol.  I.  No.  I,  p.  I,  Prof.  Washburn's  article  on  "Taxation  to  Build 
Railroads,"  and  an  able  article  in  Am.  Law.  Rev.  Oct.  1870. 

3  Per  Woodbury,  J.,  in  West  River  Bridge  Company  v.  Dix,  6  How.  (U.  S.) 
545;  Angell  on  Highways,  Sec.  86 ;  Arnold  v.  Bridge  Company,  1  Duvall 
(Ky.),  372;  United.  States  v.  Bridge  Company,  6  McLean,  517  ;  Redlield  on 
Railways,  Sec.  63, 

4  Parks  v.  Boston,  8  Pick.  218,  1829.  Copeland  v.  Packard,  16  ib.  217. 
Ante,  Sec.  382. 

•  /&,,-  Commonwealth  v,  Sawin,  2  Pick.  547,  1824;  Freeport  v.  Bristol,  9 
Pick.  46, 182pr 


CH.  XVI.]  EMINENT    DOMAIN.  447 

if  the  street  was  laid  out  or  widened,  "  colorably,"  to  use  the 
expression  of  Parsons,  C.  J.,  "  for  the  use  of  the  city,  but  really, 
for  the  benefit  of  the  individual  "  giving  or  procuring  the 
bond,  the.  proceedings  would  be  set  aside.1 

§  462.  It  is  an  authorized,  and  frequently  wise  and  just 
exercise  of  the  right  of  eminent  domain,  to  empower  towns 
and  cities  to  take,  upon  compensation  being  made,  private 
property  for  the  purpose  of  supplying  the  inhabitants  with  pure 
water.     This  is  clearly  a  public  use.2 

§  463.  On  the  ground  that  the  public  health,  convenience, 
and  welfare  will  be  thereby  promoted,  the  legislature  may 
authorize  the  condemnation  of  private  property  for  the  pur- 

1  Commonwealth  v.  Cambridge,  7  Mass.  166,  167,  1810 ;  Parks  v.  Boston, 
supra  ;  Crockett  v.  Boston,  5  Cush.  182,  190, 1849,  where  the  above  cases  are 
commented  on.    Ante,  Sec.  382. 

2  Wayland  v.  County  Commissioners,  4  Gray,  500,  per  Thomas,  J.,  1855  ; 
Burden  v.  Stein,  27  Ala.  104,  1855.  See  Same  v.  Same,  25  ib.  455 ;  Reddall  v. 
Bryan,  14  Md.  444,  1859  ;  Gardner  v.  Newbury,  2  Johns.  Ch.  162;  Ham  v. 
Salem,  10  Mass.  350.  In  the  act  to  supply  the  city  of  New  York  with  pure 
and  wholesome  water,  the  city,  under  right  of  eminent  domain,  was  author- 
ized to  take  private  property  many  miles  distant  from  the  corporate  limits. 
Although  regarded  as  going  very  far,  it  was  not  contended  that  the  legis- 
lature had  exceeded  its  power :  Mayor,  &c.  of  New  York  v.  Bailey,  2  Denio, 
433,  446,  1845,  per  Hand,  Senator.  In  the  case  of  Kane  v.  Baltimore,  infra, 
it  is  held  that  when  property  is  compulsorily  taken  by  the  exercise  of  the 
right  of  eminent  domain,  for  a  specific  public  use,  as,  for  example,  supplying 
the  city  with  water,  the  city  is  limited  to  such  use,  all  other  rights  not  in- 
terfering therewith  being  left  with  the  owner.  It  was  not  denied,  however, 
that  the  power  to  condemn,  in  fee  simple,  might,  if  necessary  to  carry  out 
the  public  end  designed,  be  conferred  by  the  legislature :  Kane  v.  Balti- 
more, 15  Md.  240,  1859,  Tuck,  J.,  dissenting. 

It  is  not  within  the  corporate  powers  of  a  city  to  open  streets  on  lands 
within  the  corporate  limits,  belonging  to  the  United  States,  and  which  has 
never  been  sold  to  private  persons :  United  States  v.  Chicago,  7  How.  (U. 
S.)  185.  Private  property,  it  was  admitted  by  the  Maryland  Court  of  Ap- 
peals, can  only  be  taken  for  "public  use;"  but  the  words  "public  use"  were 
considered  to  mean  not  merely  a  use  by  the  state,  or  the  inhabitants  there- 
of, but  embrace  a  use  for  the  government  of  the  United  States ;  and  there- 
fore, a  statute  of  the  state  of  Maryland,  authorizing  the  expropriation  of 
land  in  that  state,  for  the  purpose  of  supplying  the  city  of  "Washington 
with  water,  was  held  constitutional :  Reddall  v.  Bryan,  14  Md.  444, 1859. 
See,  on  this  subject,  Cooley  Const.  Lim.  525, 526,  and  note ;  Gilmer  v.  Lime 
Point,  18  Cal.  229 ;  19  ib.  47. 


448  MUNICIPAL   CORPORATIONS.  [CH.  XVI. 

pose  of  using  the  same  for  a  public  park,1  or  public  square,2  or 
for  the  construction  of  drains  and  sewers?  So,  for  the  same 
reasons,  a  municipal  corporation  may  be  designated  as  the 
public  agency  to  "purchase  or  otherwise  take  lands,"  within 
a  large  district,  on  compensation  being  made,  in  order  to  raise 
and  drain  them  so  as  to  abate  an  existing  nuisance  thereon.4 

§  464.  It  has  been  said  since  public  necessity  is  the  basis  of 
the  right  of  eminent  domain,  that  the  right  cannot  be  exer- 
cised except  where  the  purpose  is  useful ;  and  therefore,  that 
property  cannot  be  compulsorily  acquired  against  the  owner's 
consent  when  wanted  merely  for  ornamental  purposes.5    If  it 

1  Central  Park  Extension  (matter  of),  16  Abb.  Pr.  56 ;  Park  Commission- 
ers v.  Williams,  51  111.  57. 

2  Owners,  &c.  v.  Albany,  15  Wend.  374,  1836.  In  this  case,  the  legislature 
authorized  the  condemnation  of  property  for  a  public  square  in  the  city  of 
Albany,  and  required  the  damages  to  the  land  owners  whose  property  was 
taken  to  be  apportioned  amongst  the  owners  of  ground  to  be  benefited. 
The  Court  sustained  the  validity  of  the  enactment,  and  held  that  the  taking 
of  ground  for  such  a  purpose  was  as  much  a  public  use  as  if  taken  for  a 
street,  and  that  the  mode  of  compensation  (by  an  assessment  of  benefits 
instead  of  a  general  tax)  was  unimportant,  and  no  evidence  that  the  use  is 
not  a  public  one.  ( 

»    Hildreth  v.  Lowell,  11  Gray,  345. 

*  Dingley  v.  Boston,  100  Mass.  544,  1868.  Supra,  Sec.  456 ;  Draining  Com- 
pany Case,  11  La.  An.  338.  In  Eeeves  v.  Treasurer  of  Wood  County,  8 
Ohio  St.  333,  345,  1858  a  law,  authorizing  an  entry  upon  private  property, 
and  the  construction  of  drains  when  demanded  by  private  and  not  by  pub- 
lic interest,  was  adjudged  void.  Approving :  Matter  of  Albany  Street,  11 
Wend.  149 ;  Bloodgood  v.  Eailroad  Company,  18  Wend.  9,  59 ;  Varick  v. 
Smith,  5  Paige,  137 ;  Sedgw.  on  Const.  Law,  514,  515.  See,  also,  Cooley 
Const.  Lim.  533 ;  People  v.  Nearing,  27  N.  Y.  306 ;  Anderson  o.  Draining 
Company,  14  Ind.  199 ;  Talbot  v.  Hudson,  16  Gray,  417. 

5  Angell  on  Highways,  Sec.  85 ;  Smith,  Commentaries  on  Stat,  and  Const. 
Law,  Sec.  335.  By  the  Supreme  Court  of  Vermont  it  is  said  that  highways 
and  streets  cannot  be  laid  out  for  the  mere  purpose,  or  mainly,  for  the  pur- 
pose of  embellishing  and  ornamenting  the  grounds  about  a  public  building, 
but  that  these  results  may  be  taken  into  consideration,  in  connection  with 
the  public  convenience  and  necessity ;  if  the  latter  exist,  the  resulting  inci- 
dental embellishment  will  not  render  the  establishment  of  the  highway  or 
street  illegal :  Woodstock  v.  Gallup,  28  Vt.  (2  Wms.)  587,  1856 ;  S.  C.  29  ib. 
347.  See,  on  the  general  subject,  the  opinion  of  Woodbury,  J.,  in  West 
River  Bridge  Company  v.  Dix,  6  How.  545,  where  the  subject  of  eminent 
domain  is  ably  examined.  In  the  case  last  referred  to  this  learned  Judge, 
in  the  course  of  his  opinion,  observes :    "  When  we  go  to  other  public  uses, 


CH.  XVI.]  EMINENT   DOMAIN.  449 

be  admitted  that  in  a  given  case  the  ornamental  purpose  is  not 
associated  with  any  useful  purpose,  this  would  probably  be 
correct.  But  if  land  for  public  squares  and  parks,  which  are 
largely  for  ornament,  may  be  assumed  by  the  state,  upon  pay- 
ment to  the  owner,  it  "wjould  be  difficult  to  hold  an  act  uncon- 
stitutional which  authorized  the  condemnation  of  land  for  a 
public  fountain,  or  as  a  site  for  a  monument.  These  questions, 
however,  lie  upon  the  boundary  of  legislative  power,  and  have 
not  been  very  fully  illustrated  by  actual  adjudications. 

not  so  urgent,  not  connected  with  precise  localities,  not  difficult  to  be  pro- 
vided for  without  the  power  of  eminent  domain,  and  in  places  where  it 
would  be  only  convenient,  but  not  necessary,  I  entertain  strong  doubts  of 
its  applicability.  Who  ever  heard  of  laws  to  condemn  private  property  for 
public  use,  for  a  marine  hospital  or  state  prison  ?  So  a  custom  house  is  a 
public  use  for  the  general  government,  and  a  court  house  or  jail  for  a  state. 
But  it  would  be  difficult  to  find  precedent  or  argument  to  justify  taking 
private  property,  without  consent,  to  erect  them  on,  though  appropriate  for 
the  purpose.  No  necessity  seems  to  exist,  which  is  sufficient  to  justify  so 
strong  a  measure.  A  particular  locality  as  to  a  few  rods  in  respect  to  thair 
site  is  usually  of  no  consequence ;  while  as  to  light-house,  or  fort,  or  wharf, 
or  highway  between  certain  termini,  it  may  be  very  important  and  impera- 
tive. I  am  aware  of  no  precedents,  also,  for  such  seizures  of  private  prop- 
erty abroad,  for  objects  like  the  former,  though  some  such  doctrines  appear 
to  have  advanced  in  this  country."  See,  also,  Boston  Mill  Corporation  v. 
Newman,  12  Pick.  476 ;  Cooley  Const.  Lim.  531,  533 ;  Dunn  v.  Charleston, 
Harper  (S.  C),  Law,  189,  1824 ;  Bankhead  v.  Brown,  25  Iowa,  540 ;  Eldridge 
v.  Smith,  34  Vt.  484. 

The  legislature  incorporated  the  "Memphis  Freight  Company,"  giving  to 
it  "the  privilege  of  loading  and  unloading  freight,  goods,  and  other  prop- 
erty on  boats  that  may  touch  at  the  port  of  Memphis  :  of  erecting  on  the 
bank  of  the  Mississippi  river,  in  the  city  of  Memphis,  such  sheds,  railroad 
tracks,  engines,  and  their  equipments,  as  may  be  necessary  for  hauling 
freight ; "  no  right  was  given  to  the  public  to  use  the  property  or  privileges 
given  to  the  company,  and  no  right  of  legislative  regulation  of  tolls  was  re- 
served. It  was  held  that  this  company  organized  for  private  advantage 
and  profit,  could  not  be  invested  with  the  right  to  condemn  property, 
against  the  owner's  consent,  to  lay  down  a  railroad  track  from  the  streets 
of  the  city  to  the  margin  of  the  river,  for  the  reason  that  the  use  was  not  a 
public  use,  within  the  meaning  of  the  constitution.  It  will  be  noticed  that 
"  The  Promenade,"  over  which  the  right  of  way  was  sought,  is  treated  by 
the  case  as  the  private  property  of  the  city  of  Memphis.  There  is,  however, 
no  discussion  of  the  question  as  to  the  legislative  power  over  property  thus 
dedicated :  Memphis  Freight  Company  v.  Memphis,  4  Coldw.  (Tenn.)  419, 
1867. 

57 


450  MUNICIPAL    CORPORATIONS.  [CH.  XVI. 

§  465.  Of  the  necessity  or  expediency  of  exercising  the  right 
of  eminent  domain  in  the  appropriation  of  private  property  to 
public  uses,  the  opinion  of  the  legislature,  or  of  the  corporate 
body  or  tribunal  upon  which  it  has  conferred  the  power, to  de- 
termine the  question,  is  conclusive  upon  the  courts,  since  such  , 
a  question  is  essentially  political  in  its  nature,  and  not  judi- 
cial.1 But  the  question  whether  the  specified  use  is  a  public  use 
or  purpose,  or  such  use  or  purpose  as  will  justify  or  sustain  the 
compulsory  taking  of  private  property,  is,  perhaps,  ultimately 
a  judicial  one,  and,  if  so,  the  courts  cannot  be  absolutely  con- 
cluded by  the  action  or  opinion  of  the  legislative  department. 
But  if  the  legislature  has  declared  the  use  or  purpose  to  be  a 
public  one,  its  judgment  will  be  respected  by  the  courts,  unless 
the  use  be  palpably  private,  or  the  necessity  for  the  taking 
plainly  without  reasonable  foundation.2  But  if  the  use  is  pub- 
lic, or  if  it  be  so  doubtful  that  the  courts  cannot  pronounce  it 
not  to  be  such  as  to  justify  the  compulsory  taking  of  private 
property,  the  decision  of  the  legislature,  embodied  in  the 
enactment  giving  the  power,  that  a  necessity  exists  to  take  the 
property,  is  final  and  conclusive.3 

1  People  v.  Smith,  21  N.  Y.  597 :  Giesy  v.  Railroad  Company,  4  Ohio  St. 
308;  Varick  v.  Smith,  5  Paige,  137. 

2  Commonwealth  v.  Breed,  4  Pick.  463;  Hazen  v.  Essex  County,  12  Cush. 
477;  Bankhead  v.  Brown,  25  Iowa,  540;  Hanson  v.  Vernon,  27  Iowa,  28; 
Concord  Railroad  v.  Greely,  17  N.  H.  47 ;  2  Kent  Com.  340 ;  Memphis  Freight 
Company  v.  Memphis,  4  Coldw.  (Tenn.)  419,  1867;  Taylor  v.  Porter,  4  Hill 
(N.  Y.),  142 ;  Cooley,  Const.  Lim.  530,  el  seq.  Speaking  of  this  subject,  Shaw, 
C.  J.,  says:  "It  is  contended  that  if  this  act  was  intended  to  authorize  the 
defendant  company  to  take  the  mill  power  and  mill  of  the  plaintiff,  it  was 
void,  because  it  was  not  taken  for  public  use,  and  it  was  not  within  the  power 
of  the  government  in  the  exercise  of  the  right  of  eminent  domain.  This 
is  the  main  question.  In  determining  it,  we  must  look  to  the  declared  pur- 
poses of  the  act;  and  if  a  public  use  is  declared,  it  will  be  so  held,  unless  it 
manifestly  appears  by  the  provisions  of  the  act  that  they  can  have  no  tend- 
ency to  advance  and  promote  such  public  use : "  Hazen  v.  Essex  County, 
supra.    Infra,  Sec.  468. 

3  Same  authorities  last  cited;  Talbot  v.  Hudson,  16  Gray  (Mass.),  417. 
The  language  of  the  text  of  this  section  is  guarded,  and  the  view,  there  inti- 
mated is  the  safe  and,  perhaps,  the  sound  one.  The  citizen  is  more. secure 
in  his  rights  where  the  ultimate  decision  respecting  the  use  or  right  to  take 
is  left  to  deliberate,  unimpassioned,  and  conservative  judgment  of  the  courts ; 
but  if  the  power  of  eminent  domain  rests  alone  upon  the  basis  of  the  pub- 
lic necessities  or  of  public  policy,  it  seems  somewhat  difficult  to  maintain 
that  the  legislative  determination  of  this  question  is  not  conclusive. 


CH.  XVI.J  EMINENT   DOMAIN.  451 

§  466.  In  exercising  the  power  of  eminent  domain,  the  city 
council  need  not  preface  their  laying  out  of  a  highway  or  street 
hy  declaring  that  they  find  the  same  to  be  necessary  or  expe- 
dient. This  necessity  is  sufficiently  implied  in  their  action  on  the 
subject,  inasmuch  as  they  can  act  only  in  such  a  case.  They 
need  not  record  their  motives  where  they  have  jurisdiction  to 
act.  It  might  be  otherwise,  were  their  jurisdiction  made  to 
depend  upon  their  first  finding  a  preliminary  fact  to  be  true.1 

§  467.  The  legislature,  instead  of  directly  exercising  the 
power  to  take  private  property  for  public  use,  may  delegate  it, 
attended,  however,  by  its  constitutional  restrictions,  to  private 
corporations  organized  for  public  purposes,  and  of  course, 
therefore,  to  municipal  corporations,  which  are,  for  all  pur- 
poses of  local  government,  essentially  public  in  their  nature 
and  ends;  and  it  may,  also,  confer  upon  them  the  right  to  de- 
cide upon  the  existence  of  the  necessity  for  its  exercise.  Thus 
a  municipal  corporation  may  be  constitutionally  invested  with 
the  power  to  open  and  establish,  by  compulsory  acquisition  or 
by  purchase,  such  streets  as  its  council  may  judge  expedient  or 
necessary.2 

1  Townsend  v.  Hoyle,  20  Conn.  1,  9,  1849,  per  Ellsworth,  J.  A  finding,  by 
the  city  authorities,  that  "public  convenience  requires"  the  laying  out  of  a 
street,  is  equivalent  to  a  finding  that  it  is  "  necessary  "  in  the  sense  of  the 
statute:  Hunter  v.  Newport,  5  Kh.  Is.  325;  Watson  v.  South  Kingston,  ib. 
562.     See  chapter  on  Ordinances,  ante,  p.  278,  Sec.  252. 

2  People  v.  Smith,  21  N.  Y.  595,  1860;  Wilson  v.  Marsh  County,  2  Pet.  251 ; 
Bloodgood  ii.  Railroad  Company,  18  Wend.  9 ;  West  River  Bridge  Company 
v.  Dix,  6  How.  183;  Mercer  v.  Railroad  Company,  36  Pa.  St.  99;  Common- 
wealth v.  Charleston,  1  Pick.  180;  Scudder  v.  Trenton,  &c.  Falls  Co.  Saxt. 
(N.J.)  694;  Harbeck  v.  Toledo,  11  Ohio  St.  219;  Shaffner  v.  St.  Louis,  31 
Mo.  264;  Swan  v.  Williams,  2  Mich.  427 ;  Embury  v.  Conner,  3  Comst.  511, 
1850;  Alexander  v.  Baltimore,  5  Gill,  383;  Sedgw.  on  Stat,  and  Const.  Law, 
517.  The  expediency  of  exercising  the  power  usually  given  to  open  streets 
is  generally  left  solely  to  the  judgment  of  the  governing  body  of  the  corpo- 
ration: Curry  v.  Mt.  Sterling,  15  111.  320,  1853.  Power  may  be  delegated  to 
local  authorities  to  determine  the  expediency  of  building  a  bridge  over  a 
creek:  Commonwealth  v.  Charlestown,  1  Pick.  180.  Streets  may  be  estab- 
lished by  direct  action  of  the  legislature  as  by  ordering  a  survey  of  a  town 
to  be  made,  and  declaring  the  map  to  be  a  public  record.  Such  streets  are 
public  highways  without  being  formally  opened  or  used :  West  v.  Blake,  4 
Blackf.  (Ind.)  234,  1836. 


452  MUNICIPAL    COKPORATIONS.  [CH.  XVI. 

§  468.  Whether  the  power  be  exercised  directly  by  the  leg- 
islature, or  mediately  through  municipal  corporations  or  other 
public  agencies,  the  purpose  or  use  for  which  private  property 
is  authorized  to  be  appropriated  should  be  specified  by  the  legis- 
lature, and  the  power  will  not  be  enlarged  by  doubtful  con- 
struction.1 Therefore,  authority  to  a  city  corporation  to  ap- 
propriate private  property  for  streets,  lanes,  alleys,  and  public 
squares  or  grounds,  does  not  confer  the  power,  compulsorily, 
to  take  private  property  upon  which  to  erect  a  city  prison.2 
So  where  the  purpose  for  which  land  is  to  be  taken  is  as  well 
met  by  construing  the  ■  authority  to  warrant  the  taking  of  an 
easement  only  as  of  the  fee,  the  grant,  if  doubtful,  will  be  con- 
strued most  favorably  for  the  citizen.3 

§  469.  Not  only  must  the  authority  to  municipal  corpora- 
tions, or  other  delegated  legislative  agents,  to  take  private 
property,  be  expressly  conferred,  and  the  use  for  which  it  is 
taken  specified,  but  the  power,  with  all  constitutional  and  statu- 
tory limitations  and  directions  for  its  exercise,  must  be  strictly 
pursued.  Since  the  power  to  condemn  private  property  against 
the  will  of  the  owner  is  a  stringent  and  extraordinary  one, 
based  upon  public  necessity  or  an  urgent  public  policy,  the 
rule  requiring  the  power  to  be  strictly  construed,  and  the  pro- 

1  Claiborne  Street  (matter  of),  4  La.  An.  7;  Exchange  Alley  (matter  of), 
4  La.  An.  4 ;  East  St.  Louis  v.  St.  John,  47  111.  463,  1868 ;  Cooley,  Const.  Lim. 
530,  541 ;  Kane  v.  Baltimore,  15  Md.  240,  1859.  In  proceedings  to  open 
streets,  the  costs  thereof  cannot,  unless  the  right  to  do  so  be  expressly  or 
plainly  given  by  the  statute,  be  added  to  the  damages  and  collected  from 
the  owners  of  the  adjacent  property.  The  words,  "the  expenses  of  said  im- 
provement," do  not  embrace  the  costs  of  the  proceedings.  In  the  absence 
of  authority  to  collect  the  same  from  the  adjacent  owners,  the  costs  must 
be  borne  by  the  corporation:  Morris  v.  Chicago,  11  111.650,  1850;  S.P. 
Trustees  *.  Chicago,  12  ib.  403.    See  Street  Case,  10  La.  An.  313. 

2  East  St.  Louis  v.  St.  John,  supra.  It  would  seem  to  be  the  opinion  of 
Mr.  Justice  Woodbury,  that  private  property  could  not  be  compulsorily 
taken  for  such  a  purpose,  if  the  legislature  had  undertaken  to  grant  the 
power.  He  says:  "  Who  ever  heard  of  laws  to  condemn  private  property 
for  public  use  for  a  marine  hospital  or  state  prison?"  West  River  Bridge 
Company^.  Dix,  6  How.  (U.  S.)  545. 

-  Edgerton  v.  Huff,  26  Ind.  35.  See  Heyneman  v.  Blake,  19  Cal.  579; 
Kane  v.  Baltimore,  15  Md,  24Q, 


CH.  XVI.]  EMINENT    DOMAIN.  453 

scribed  mode  for  its  exercise  strictly  followed,  is  a  just  one, 
and  should,  within  all  reasonable  limits,  be  inflexibly  adhered 
to  and  applied.1 

§  470.  Especially  will  the  courts  require  a  strict  compliance 
with  all  conditions  precedent  to  the  exercise  of  the  power,  and  all 
provisions  as  to  the  manner  of  its  exercise  intended  for  the  bene- 
fit and  protection  of  the  citizen.  If  the  authority  be  not  thus 
pursued,  the  proceedings  will  not  have  the  effect  to  divest  the 
owner  of  his  property.2  If  defective  in  respect  to  jurisdictional 
requisites,  they  will  be  void;  if  irregular,  simply,  they  will  be 
set  aside  by  the  courts  on  certiorari  or  such  other  remedy  as 
may  be  deemed  appropriate  in  the  particular  state.3  Not  only 
so,  but  a  municipal  corporation  claiming  title  to  streets  or 
other  public  property,  by  virtue  of  proceedings  under  the  ex- 
ercise of  the  right  of  eminent  domain,  must  show  affirmatively 
that  the  requirements  of  the  statute  have  been  complied  with. 
Thus,  if  under  the  statute  or  charter,  the  disagreement  of  the 
parties  as  to  the  amount  of  the  compensation,  is  an  essential 
prerequisite  of  the  right  of  the  city  compulsorily  to  appropriate 
private  property,  this  fact  must  be  shown  by  the  city.4 

1  Shaffner  v.  St.  Louis,  31  Mo.  264, 1860;  Mayor,  &c.  v.  Long,  ib.  369;  Har- 
beck  v.  Toledo,  11  Ohio  St.  219,  1860;  Dyckman  v.  Mayor,  &c.  of  New  York, 
lSeld.  439;  State  v.  Jersey  City,  1  Dutch.  (N.J.)  309,  1855;  Cincinnati!;. 
Combs,  16  Ohio,  181,  1847;  Mitchell  v.  Kirtland,  7  Conn.  229;  16.350;  Nich- 
ols v.  Bridgeport,  23  Conn.  189,  208,  1854;  Judson  v.  Bridgeport,  25  Conn. 
426;  Van  Wickle  v.  Bailroad  Company,  2  Green  (N.  J.),  162,  1833;  Adams 
v.  Bailroad  Company,  10  N.  Y.  328;  Cooley,  Const.  Lim.  528,  541;  People  v. 
Brighton,  20  Mich.  57;  Kidder  v.  Peoria,  29  111.  77,. 1862;  Exchange  Alley 
(matter  of),  4  La.  An.  4;  Claiborne  Street  (matter  of),  ib.  7;  Thompson  v. 
Schermerhorn,  2  Seld.  92;  Burnett  v.  Buffalo,  17  N.  Y.  383;  Hunt  v.  Utica, 
18  N.  Y.  442;  Kyle  v.  Malin,  8  Ind.  34,  37;  Eedfield  on  Railways,  Sec.  64; 
People  v.  Railroad  Company,  111.  Sup.  Ct.  April,  1872.  "It  is  a  well  estab- 
lished rule,  that  in  matters  of  expropriation  to  public  use,  ail  the  forms  of 
law  must  be  rigidly  observed:''    Street  Case,  16  La.  An.  393,  1861. 

2  See  authorities  last  cited. 

5  Harbeck  v.  Toledo,  11  Ohio  St.  219;  Parks  v.  Boston,  8  Pick.  218;  Shaff- 
ner v.  St.  Louis,  31  Mo.  264 ;  Baltimore  v.  Eschback,  18  Md.  276 ;  Welker  v. 
Potter,  18  Ohio  St.  85.    Post,  Chap.  XXII. 

4  Dyckman  v.  Mayor,  &c.  of  New  York,  1  Seld.  434,  1851,  a  fully  consid- 
ered case,  arising  out  of  the  condemnation  of  the  plaintiff's  land  for  the 
Croton  Water  Works.  If,  however,  the  owner  appears,  in  the  proceedings, 
to  assess  his  damages,  and  contests  the  amount,  without  objecting  that  no 


454  MUNICIPAL   CORPORATIONS.  [CH.  XVI. 

§  471.  So  notice  of  the  proceedings  to  take  property  for  pub- 
lic use  is,  when  required  to  be  given,  the  basis  of  jurisdiction 
or  of  the  right  to  proceed,  and  if  not  given,  or  if  not  given  in 
the  required  manner,  the  proceedings  are  unauthorized  and 
void.1  It  is,  however,  competent  for  the  legislature,  in  the  ab- 
sence of  special  constitutional  restriction,  to  provide  for  con- 
structive notice  only  to  those  interested.2 

effort  had  been  made  to  agree,  the  court  (it  was  held)  will  presume  it  to 
have  been  made:  Reitenbaugh  v.  Railroad  Company,  21  Pa.  St.  100.  As  to 
failure  to  agree  with  owner,  see,  also,  Railroad  Company  v.  Porter,  29  Pa. 
St.  165;  Neal  v.  Railroad  Company,  2  Grant  (Pa.)  Cases,  137;  Doughty  v. 
Railway  Company,  1  Zabr.  442 ;  Gilmer  v.  Lime  Point,  19  Cal.  47.  Effort  and 
failure  to  agree  held  not  a  condition  precedent:  Bigelow  v.  Railroad  Com- 
pany, 2  Head,  624.  How  the  fact  of  the  attempt  to  agree,  and  its  failure, 
may  be  shown,  vide  opinions  of  Foot  and  Gardiner,  JJ.,  in  Dyckman  v. 
Mayor,  &c.  supra.  See,  also,  as  to  principle  in  text,  Sharp  v.  Spier,  4  Hill, 
76;  Sharp  v.  Johnson,  ib.  92;  Nichols  v.  Bridgeport,  23  Conn.  189.  That 
owner  may  waive  constitutional  or  statutory  provisions  for  his  benefit  — 
effect  of  receipt  of  payment — powers  andnature  of  jurisdiction  of  Supreme 
Court  as  to  confirmation  (under  statute)  of  reports  of  commissioners — and 
that  title  passes  by  force  of  the  statute  and  payment,  see  Embury  v.  Conner,  3 
Comst.  511;  Ib.  197;  Arnot  v.  McClure,  4  Denio,  45;  Strikers.  Kelly,  7  Hill, 
9;  S.  C.  in  error,  2  Denio,  323;  Doughty  v.  Hope,  3  Denio,  249;  Kennedy  v. 
Newman,  1  Sandf.  187. 

1  Harbeck  v.  Toledo,  11  Ohio  St.  219,  1860;  Kidder  v.  Peoria,  29  111.  77, 
1862;  Baltimore  v.  Bouldin,  23  Md.  328,  1865;  McMicken  v.  Cincinnati,  4 
Ohio  St.  394;  Molett  v.  Keenan,  22  Ala.  484;  Darlington  v.  Commonwealth, 
41  Pa.  St.  68 ;  Nichols  v.  Bridgeport,  23  Conn.  189.  As  to  notice  and  its 
requisites,  see,  also,  Redfield  on  Railways,  Sec.  72.  Waiver  of  notice: 
Cruger  v.  Railroad  Company,  12  N.  Y.  190.  As  to  notice  in  similar  cases: 
Myrick  v.  La  Crosse,  17  Wis.  442:  Rathbun  v.  Acker,  18  Barb.  393;  Risley  v. 
St.  Louis,  34  Mo.  404;  Welker  v.  Potter,  18  Ohio  St.  85;  compare  Furnell  v. 
Cotes,  19  Ohio  St.  405;  Co  wen  v.  West  Troy,  43  Barb.  48;  State  v.  Hudson,  5 
Dutch.  (N.  J.)  475. 

*  Stewart  v.  Board,  &c.  25  Miss.  479;  Palmyra  v.  Morton,  25  Mo.  593,  597; 
Swan  v.  Williams,  2  Mich.  427.  The  publication  of  the  ordinance  which 
authorizes  the  opening  of  the  street  is  frequently  the  only  notice  to  prop- 
erty owners  which  is  required  by  the  charter  or  constituent  act  of  the  cor- 
poration: Curry  v.  Mt.  Sterling,  15  111.  320,  1853;  Joliet  v.  Railroad  Com- 
pany, 23  111.  202.  Where  notice  of  the  proceedings  to  open  streets  is  re- 
quired to  be  given  by  publication  only,  and  it  is  thus  given,  "  the  law  im- 
putes notice,  and  will  not  admit  testimony  to  disprove  it; "  and  in  such  case 
want  of  aGtual  notice  in  any  party  is  no  ground  for  relief,  in  equity  or 
otherwise,  against  such  proceedings;  Methodist  Protestant  Church  v.  Balti- 
more, 6  Gill  (Md.),  391, 1848.  See  State  v.  Jersey  City,  4  Zabr.  662;  Dubuque 
v.  Worten,  28  Iowa,  571.    Post,  Chap.  XIX. 


CH.  XVI.J  EMINENT   DOMAIN.  455 

So  where  the  charter,  by  a  fair  construction,  provided  that 
each  applicant  for  a  review  of  an  assessment  should  himself  have 
the  right  to  select  two  appraisers,  an  ordinance  denying  this 
right  and  giving  it  to  a  majority  of  those  to  be  affected  by  the 
laying  out  of  a  street,  is  void.1  So  authority  to  open,  a  street 
and  assess  the  damages  on  the  property  benefited,  does  not 
give  the  power  to  assess  for  anything  more  than  opening  the 
street  and  paying  for  the  right  of  way;  it  does  not  include  the 
power  to  assess  other  property  for  the  improvement  of  the  street 
by  grading,  culverting,  and  the  like.2 

§  472.  So  if  damages  are  to  be  assessed  by  commissioners 
who  are  free-holders,  the  fact  that  they  are  such  should,  it  has 
been  held,  appear  on  the  face  of  the  proceedings.3  But  where 
the  charter  required  the  city  council  to  appoint  as  commis- 
sioners disinterested  free-holders  residing  in  the  city,  and  the 
corporation,  in  a  proceeding  against  it  by  the  land  owner  for  a 
mandamus  to  compel  it  to  collect  the  amount  awarded,  admitted 
that  its  council  had  appointed  the  commissioners,  it  was  held 
as  against  the  i  ity  that  the  commissioners  would  be  presumed 
to  possess  the  requisite  qualification,  the  contrary  not  appear- 
ing on  the  face  of  the  proceedings.4 

§  473.  Under  the  language  by  which  the  power  to  open 
streets  and  to  take  private  property  for  that  purpose  is  usually 
conferred  upon  municipal  corporations,  they  may,  at  any  time 

1  Cincinnati  v.  Coombs,  16  Ohio,  181, 1847,  and  see  ib.  574. 

'  Reed  v.  Toledo,  18  Ohio,  161,  1849.  "Opening"  street  denned:  Ib. 
Post,  Chapter  on  Taxation  and  Local  Assessments. 

3  Nichols  v.  Bridgeport,  23  Conn.  189, 208, 1854.  If  not  thus  appearing,  the 
proceedings  will  be  held  void:  Ib.  See,  also,  Judson  v.  Bridgeport,  25 
Conn.  426;   Griffin  v.  Rising,  2  Cush.  75;   People  v.  Brighton,  20  Mich.  57. 

*  State  v.  Keokuk,  9  Iowa,  438,  1859.  See  Higgins  v.  Chicago,  18  111.  276; 
Chicago  v.  Wheeler,  25  111.  478.  A  provision  in  a  charter  that  plans  for 
opening  streets  shall  be  recorded  in  the  recorder's  office,  is  directory :  Sower 
v.  Philadelphia,  35  Pa.  St.  "331.  An  order  laying  out  a  street  or  highway 
may  refer  to  a  "  plan,"  in  which  case  the  plan  meant  may  be  shown  and 
identified  by  evidence  aliunde,  and  used  to  prove  the  location  and  limits  of 
the  highway :  Stone  v.  Cambridge,  6  Cush.  270, 1850.  Sufficiency  of  descrip- 
tion of  proposed  street:  Stewart  v.  Baltimore,  7  Md.  500.  As  to  mode  of  pro- 
cedure, and  various  points  of  practice  respecting  the  assessment  of  damages, 
see  Redfleld  on  Railways,  Sec.  72,  where  many  of  the  cases  are  referred  to 
and  stated. 


456  MUNICIPAL    CORPORATIONS.  [CH.  XVI. 

before  taking  possession  of  the  property  under  completed  pro- 
ceedings, or  before  the  final  act  of  confirmation,  recede  from 
or  discontinue  the  proceedings  they  have  instituted.  This  may  be 
done,  unless  it  is  otherwise  provided  by  legislative  enactment, 
at  any  time  before  vested  rights  in  others  have  attached. 
Until  the  assessments  of  damages  have  been  made,  the  amount 
cannot  be  known,  and  it  is  reasonable  that  after  having  ascer- 
tained the  expense  of  the  project  the  corporation  should  have 
a  discretion  to  go  on  with  it  or  not,  as  it  sees  fit.1 

1  Anthony  Street,  20  Wend.  618,  619,  and  prior  cases  in  New  York  there 
cited;  Martin  v.  Mayor,  &c.  of  Brooklyn,  1  Hill  (N.  Y.),  541,  1841;  In  re 
Dover  Street,  18  Johns.  506;  Millard  v.  Lafayette,  5  La.  An.  112,  1850; 
Roffignac  Street  (matter  of),  4  Rob.  (La.)  357 ;  Canal  Street  (matter  of),  11 
Wend.  155;  McLaughlin  v.  Municipality,  5  La.  An.  504;  St.  Joseph  v.  Ham- 
ilton, 43  Mo.  282;  State  v.  Hug,  44  Mo.  116;  Hullin  v.  Municipality,  4  Bob. 
(La.)  357;  S.  C.  11  ib.  97, 1845;  Water  Commissioners  of  Jersey  City,  31  N. 
J.  (2  Vroom)  72,  1864;  Clough  v.  Unity,  18  N.  H.  75,  Pillsbury  v.  Spring- 
field, 16  N.  H.  565;  Higgins  v.  Chicago,  18  111.  276;  State  v.  Graves,  19  Md. 
351, 1862,  where  the  subject  is  well  discussed  by  Bowie,  C.  J.  After  verdict 
and  judgment  in  favor  of  the  land  owner  (Hawkins  v.  Rochester,  1  Wend. 
54),  or  after  confirmation  of  the  report,  private  rights  attach,  and  the  cor- 
poration cannot  discontinue  the  proceedings,  although  the  court  may  refuse 
a  mandamus  and  leave  the  parties  to  their  remedy,  by  action :  People  v. 
Brooklyn,  1  Wend.  318,  and  cases  cited ;  In  re  Dover  Street,  supra.  A  city 
"  may  revoke  ordinances  establishing  new  streets  before  they  are  opened, 
if,  in  the  exercise  of  its  discretion,  it  ascertains  that  the  opening  of  them 
would  be  injurious  to  the  public  interest;  provided,  however,  that  no 
vested  right  acquired  under  the  dedication  is  affected  by  the  change : "  Per 
Rost,  J.,  Municipality  v.  Levee  Company,  7  La.  An.  270,  1852.  The  author 
does  not  understand  the  case  of  the  State  v.  Keokuk  (9  Iowa,  438,  1859),  to 
deny,  but  rather  to  affirm,  the  power  of  the  city  to  abandon  the  project  of 
opening  a  street  at  any  time  before  the  property  is  taken ;  but  the  case 
holds  that  the  city,  while  proceeding  with  the  work,  has  no  implied  power  to 
set  aside  the  report  of  commissioners  it  had  appointed,  and  to  appoint  new 
ones  at  discretion,  "until  the  damages  are  brought  to  square"  with  its 
views.  On  this  ground  the  case  is  sustainable,  and  in  accordance  with  set- 
tled principles  and  sound  reason.  It  is  not  to  be  taken  as  holding  that  the 
land  owner  has  a  vested  right  to  an  assessment  simply  because  one  has 
been  made.  Power  to  set  aside  report  and  appoint  new  board,  see  Redfield 
on  Railways,  Sec.  72,  and  notes.  Assessment  made  by  commission  must  be 
approved  or  rejected  by  the  court  in  toto;  it  cannot  amend  the  report: 
Matter  of  Clair orne  Street,  4  La.  An.  7;  Matter  of  Anthony  Street,  20 
Wend.  618;  Simmons  v.  Mumford,  2  Rh.  Is.  172;  Clarke  v.  Newport,  5  Rh. 
Is.  333.  Where  a  city  has  accepted  and  confirmed  the  report  of  commis- 
sioners to  assess  damages,  it  is  concluded  from  withholding  payment  be- 
cause of  an  alleged  error :  Higgins  v.  Chicago,  18  111.  276 ;  Chicago  v. 
Wheeler,  25  111.  478. 


CH.  XVI.]  EMINENT   DOMAIN.  457 

§  474.  "W"here  proceedings  are  rightfully  discontinued,  the 
land  owner  cannot  have  a  mandamus  to  collect,  nor  recover  by 
action,  the  sum  that  may  have  been  estimated  by  commission- 
ers; -yet  he  may  have  a  special  action  for  damages  for  any 
wrongful  and  injurious  acts  of  the  corporation  in  the  course  of 
the  proceedings.1  And  it  has  been  even  held  that  if  the 
municipality  deems  it  best  to  abandon  the  proposed  work  or 
project,  it  may  do  so,  and  discontinue  proceedings,  although 
it  may  have  taken  possession  of  the  premises.  By  taking  such 
possession,  it  is  argued,  the  corporation  does  not  impliedly 
agree  to  purchase  at  the  appraisement.  It  may,  nevertheless, 
discontinue  the  proceedings,  and  the  land  owner  can  only  de- 
mand the  premises,  and  damages  for  being  deprived  of  them, 
and  for  injuries  thereto.2 

§  475.  Nor  has  the  municipal  corporation  always  been  con- 
sidered aj  concluded  and  bound  to  pay  the  damages  awarded, 
although  the  report  of  the  commissioners  appointed  by  it  had 
been  confirmed.  The  act  to  enable  the  city  of  Baltimore  to 
procure  a  supply  of  water  authorized  the  city  to  condemn  lands, 
required  the  inquisition  of  damages  to  be  returned  to  the  circuit 
court,  and  provided  that  it  "  should  be  confirmed  by  the  said 
court  at  its  next  sitting,  if  no  sufficient  cause  to  the  contrary  be 
shown,"  and  the  "valuation  when  paid  or  tendered  shall  enti- 
tle the  city  to  use  the  land  as  fully  as  if  it  had  been  conveyed 
by  the  owner."  It  was  held  that  the  city  was  not  bound  by 
the  mere  inquisition  of  damages,  although  confirmed  by  the 
court,  to  pay  the  amount  awarded,  but  could,  neverthe- 
less,, abandon  the  location  in  question;  that  the  judgment 
of  confirmation   simply  decided  the  value  of  the  land,  and 

1  State  v.  Graves,  19  Md.  351,  1862;  Millard  v.  Lafayette,  5  La.  An.  112, 
1850 ;  Roffignac  Street,  4  Rob.  (La.)  357 ;  Canal  Street,  11  Wend.  (N.  Y.)  155 ; 
Anthony  Street,  20  Wend.  618;  Walling  v.  Mayor,  5  La.  An.  660.  Where  a 
corporation  commences  proceedings  to  open  a  street,  and  notifies  a  proprie- 
tor not  to  continue  the  making  of  improvements  he  had  begun,  and  the 
corporation  unnecessarily  delays  and  finally  abandons  the  proceedings,  it  is, 
under  these  circumstances,  •  liable  for  the  actual  damages  suffered  by  the 
proprietor,  arising  from  the  suspension  of  his  improvements:  McLaughlin 
v.  Municipality,  5  La.  An.  504, 1850,  distinguished  from  Millard  v.  Lafayette 
ib.  112;  Graff  v.  Baltimore,  10  Md.  544, 1857. 

1  Hullen  v.  Municipality,  11  Bob.  (La.)  97, 1845. 
58 


458  MUNICIPAL   CORPORATIONS.  [CH.  XVI. 

that  payment  or  tender  of  the  valuation  is  necessary  to  give 
the  city  a  title  to  the  property.  It  was  admitted  by  the  court, 
however,  that  if  the  owner  suffered  loss  or  injury  by  reason  of 
the  wrongful  acts  of  the  city,  he  might  recover  damages Jhere- 
for.1  But  the  language  of  the  act  or  charter  may  be  such  as 
to  give  the  land  owner  a  right  to  the  sum  assessed,  and  to  pre- 
vent the  corporation  from  setting  aside  or  discontinuing  pro- 
ceedings, as  where  it  is  provided  "that  after  the  value  and 
damages  shall  have  been  ascertained,  the  amount,  with  inter- 
est, shall  be  paid  to  the  person  interested,  on  demand."  2 

§  476,  If  no  appeal  or  other  special  remedy  be  given,  it  has 
been  very  generally  held  that  certiorari  lies  against  a  town  or 
city  corporation  with  respect  to  their  proceedings  in  laying 
out,  altering,  or  improving  a  street,  and  if  invalid  they  will  be 
set  aside  by  the  courts.3    Adopting  what  it  regarded  as  the 

1  Graff  v.  Baltimore,  10  Md.  544,  1857,  approving  Railroad  Company  v. 
Nesbit,  10  How.  (U.  S.)  895.  See,  also,  as  to  private  rights  vesting,  State  v. 
Clunet,  19  Md.  351,  1862. 

a  Stafford  v.  Albany,  7  Johns.  541,  1811 ;  S.  C.  6  ib.  1. 

3  See,  post,  Chap.  XXII. ;  ante,  Sec.  368.  Also,  State  v.  Wakely,  2  Nott  & 
McCord,  410,  1820 ;  State  v.  Cockrell,  2  Rich.  Law,  6  ;  Parks  v.  Boston,  8 
Pick.  218,  1829 ;  Preble  v.  Portland,  45  Maine,  241,  1858  ;  Stone  v.  Boston,  2 
Met.  220 ;  Prigden  v.  Bannerman,  8  Jones  (N.  C),  53 ;  Baldwin  v.  Bangor, 
36  Maine,  518  ;  Gay  v.  Bradstreet,  39  Maine,  580  ;  Dwight  v.  Springfield,  4 
Gray,  107,  1855  ;  Kingman  v.  County  Commissioners,  6  Cush.  306 ;  French 
v.  Commissioners,  12  Mich.  267  ;  Inhabitants  of  Monterey  v.  County  Com- 
missioners, 7  Cush.  394  ;  Intendant  v.  Chandler,  6  Ala.  899,  1844 ;  Ruhlman 
v.  Commonwealth,  5  Binn.  26 ;  Ex  parte  Tarlton,  2  Ala.  35,  1841 ;  Swan  v. 
Cumberland,  8  Gill.  (Md.)  150, 1849;  Camden  v.  Mulford,  2  Dutch.  (N.  J.) 
49 ;  Dorchester  v.  Wentworth,  11  Fost.  (N.  H.)  451 ;  State  v.  Stewart,  5 
Strob.  (S.  C.)  Law,  29 ;  State  v.  Swift,  1  Hill  (S.  C),  360 ;  Myers  v.  Simms,  4 
Iowa,  500 ;  McCrory  v.  Griswold,  7  Iowa,  248  ;  Spray  v.  Thompson,  9  Iowa, 
40  ;  Campau  v.  Detroit,  14  Mich.  276,  1866;  Duffield  v.  Detroit,  15  Mich.  474. 

So  in  Vermont  it  is  held  that  the  proceedings  by  the  county  court  to  lay 
out  roads  are  not  by  the  course  of  the  common  law,  and  can  only  be  revised 
upon  certiorari,  or  by  writ  of  mandamus  in  the  nature  of  a  procedendo: 
Adams  v.  Newfane,  8  Vt.  271 ;  Lyman  v.  Burlington,  22  ib.  131 ;  Woodstock 
v.  Gallup,  28  Vt.  (2  Wms.)  587,  1856,  where  Redfield,  C.  J.,  very  fully  consid- 
ers the  proper  office  of  writs  of  certiorari  and  mandamus  in  the  nature  of  a 
procedendo.  The  latter  was  deemed  the  more  appropriate  remedy  where 
the  inferior  tribunal  disposed  of  the  case  upon  an  incidental  question,  and 
not  upon  the  merits :  See  Rand  v.  Townsend,  26  Vt.  670.  It  is  held  in 
New  York  (People  v.  Mayor,  2  Hill,  9, 1841,)  and  Ohio  (Dixon  v.  Cincinnati, 


CH.  XVI.]  EMINENT    DOMAIN.  459 

well  established  general  doctrine,  the  Supreme  Court  of  the 
United  States  have  held  that  the  federal  circuit  courts,  sitting  in 
equity,  will  not  interfere,  by  injunction,  or  otherwise,  with  the 
proceedings  and  determinations  of  the  municipal  authorities 
in  exercising  the  power  to  open  streets,  unless  it  becomes 
necessary,  to  prevent  a  multiplicity  of  suits,  or  irreparable 
injury,  or  unless  the  proceeding  sought  to  be  annulled  or  cor- 
rected is  valid  upon  its  face,  and  the  alleged  invalidity  consists 
in  matters  to  be  proved  by  extrinsic  evidence.  There  must  be 
some  recognized  ground  of  equity  jurisdiction,  or  equity  will 
not  interfere.  If  the  proceedings  are  void,  and  do  not  cast  a 
cloud  upon  the  owner's  title,  he  must  resort  to  the  ordinary 
legal  remedies.  If  the  municipal  authorities  have  failed  to 
follow  the  provisions  of  the  charter,  or  have  exceeded  the  juris- 
diction which  it  confers,  the  remedy  of  the  land  owner  for  the 
review  and  correction  of  the  proceedings  is  by  certiorari,  and 
not  by  bill  in  equity.1 

14  Ohio,  240,  1846)  that  certiorari  will  not  lie  in  such  cases  unless  given  by 
statute,  but  the  cases  above  referred  to  will  show  that  the  opposite  opinion 
has  been  very  generally  adopted :    See  People  v.  Stilwell,  19  N.  Y.  531. 

1  Ewing  v.  St.  Louis,'5  Wall.  413,  1866.  In  this  case  the  city  of  St.  Louis 
had  condemned  a  portion  of  the  complainant's  property,  for  a  street,  and 
assessed  benefits  and  damages,  and  rendered  judgment  accordingly.  The 
complainant  filed  a  bill  in  the  United  States  Circuit  Court  to  enjoin  the  en- 
forcement of  the  judgment,  and  also  to  obtain  compensation  for  the  property 
appropriated  for  the  street.  The  bill  set  forth  various  grounds  of  alleged  ille- 
gality in  the  proceedings,  and  a  demurrer  thereto  was  sustained.  "  Of  these 
grounds  for  relief,  the  principal  are,"  says  Mr.  Justice  Meld,  giving  the 
judgment  of  the  Supreme  Court,  "  that  the  proceedings  were  taken  without 
notice  to  the  complainant,  or  any  appearance  by  him ;  that  the  notice  pro- 
vided by  law  was  not  published  as  required ;  that  no  provision  was  made 
for  compensation  for  the  property  taken ;  that  no  power  to  render  the 
judgments  was  vested  in  the  mayor  by  the  legislature  or  charter,  and  ihat 
the  statute  under  which  the  proceedings  purported  to  have  been  taken  was 
repealed  before  the  proceedings  were  completed.  These  grounds  are,  by 
the  demurrer,  admitted  to  be  true,  and  being  true,  no  reason  exists  upon 
which  to  justify  the  interposition  of  a  court  of  equity."  *  *  "The 
second  object  of  the  bill, — the  obtaining  of  compensation  for  the  property 
actually  appropriated  by  the  city, — falls  with  the  first.  If  the  proceedings 
for  its  appropriation  were  void,  the  title  remains  in  the  complainant,  and  he 
can  resort  [unless  the  legislature  has  required  him  to  pursue  a  particular 
remedy]  to  the  ordinary  remedies  afforded  by  law  for  the  recovery  of  the 
possession  of  real  property  wrongfully  withheld,  or  for  the  redress  of 
trespasses  upon  it : "  5  Wall.  418,  419.  The  general  subject  is  further 
treated  in  Chap.  XXII.  post. 


460  MUNICIPAL   CORPORATIONS.  [CH,  XVI. 

§  477.  Respecting  compensation,'  the  mode  of  ascertaining 
the  amount  in  case  of  disagreement,  and  the  time  and  manner 
of  payment,  and  the  remedies  for  its  enforcement,  a  few  princi- 
ples applicable  to  municipal  corporations  must  be  noticed 
Nearly  all  the  constitutions  provide  that  "just  compensation" 
shall  be  made  for  the  property  taken ;  and  that  view  is  believed 
to  be  sound  which  regards  this  language  as  necessarily  con- 
templating compensation  of  a  pecuniary  character,  in  respect 
to  the ,  property  appropriated.  Some  of  the  constitutions  go 
more  into  detail,  and  in  terms  proyide  that  the  com- 
pensation shall  be  made  "in  money,"  and  some  contain  a 
clause  as  to  the  time  of  payment  as  that  it  shall  be^rs^  made  or 
secured,  that  is,  made  or  secured  before  the  property  is  taken 

Where  the  charter  of  a  city,  in  conferring  upon  it  the  power  of  opening 
streets,  gives  to  the  parties  considering  themselves  aggrieved  by  the  pro- 
ceedings an  appeal  to  a  court  of  competent  jurisdiction,  with  a  right  to  a 
jury  trial,  they  should  seek  redress  in  that  tribunal,  and  not,  at  least  ordi- 
narily, by  a  bill  in  equity  :  Methodist  Protestant  Church  v.  Baltimore,  6 
Gill  (Md.),  391,  1848;  Dusseau  v.  Municipality,  6  La.  An.  575;  Stewart  is. 
Baltimore,  7  Md.  500,  1855  ;  Baltimore  v.  Clunet,  23  Md.  449, 1865.  If  an 
appeal  is  given,  that  course  is  proper  for  an  aggrieved  party  to  pursue  ;  if 
he  has  no  other  remedy,  he  may  have  a  certiorari,  but  not  an  injunction, 
unless  on  equitable  grounds:  State  v.  Wakely,  2  Nott  &  McCord,  410; 
State  v.  Cockrell,  2  Eich.  (S.  C.)  Law,  6  ;  Spray  v.  Thompson,  9  Iowa,  40 ; 
Ewing  v.  St.  Louis,  supra. 

A  municipal  corporation  will,  on  application  of  the  owner,  be  enjoined 
from  appropriating  private  property  for  the  purpose  of  a  street,  until  it 
complies  with  the  law,  by  assessing  and  tendering  damages  to  the  owner : 
Lafayette  v.  Bush,  19  Ind.  326,  1862.  Or  securing  them :  Sower  v.  Phila- 
delphia, 35  Pa.  St.  231. 

When  equity  will  interfere  by  injunction  to  restrain  the  illegal  and  unau- 
thorized acts  of  municipal  corporations :  See  post,  Chap.  XXII. ;  Reddall 
v.  Bryan  (condemnation  of  property),  14  Md.  444 ;  Richardson  is.  Baltimore, 
8  Gill  (Md.),  433,  1849;  Alexander  v.  Baltimore,  5  Gill  (Md.),  383.  Opening 
streets :  Attorney  General  v.  Peterson,  1  Stockt.  (N.  J.)  624 ;  Trustees  v. 
Davenport;  7  Iowa,  213 ;  Connolly  v.  Griswold,  7  Iowa,  416 ;  ib.  248 ;  Harness 
v.  Canal  Company,  1  Md.  Ch.  Dec.  248 ;  Walker  v.  Railroad  Company,  8 
Ohio,  38  ;  Railroad  Company  v.  Owings,  15  Md.  199 ;  Henry  v.  Railroad 
Company,  10  Iowa,  540;  Browning  v.  Railroad  Company,  3  Green,  Ch.  (N. 
J.)  47 ;  Ragatz  v.  Dubuque,  4  Iowa,  349.  As  to  prohibition  as  a  remedy 
against  illegal  corporate  proceedings :  State  v.  Wakely,  supra ;  Mayo  v. 
James,  12  Gratt.  (Va.)  17 ;  Warwick  v.  Mayo,  15  ib.  528 ;  Ex  parte  Williams, 
4  Pike  (Ark.),  537  and  note,  with  forms ;  Arnold  v.  Shields,  5  Dana  (Ky.), 
18.    Post,  Chap.  XXII. 


CH.  XVI.]  EMINENT    DOMAIN.  461 

or  applied  to  the  proposed  public  use ;  and  some  contain  a 
provision  giving  the  land  owner  the  right  to  have  the  compen- 
sation determined  by  a  jury.  It  is  not  within  the  scope  of  this 
work  to  follow  out  these  different  provisions  into  the  construc- 
tion which  they  have  received  in  the  courts  of  the  various 
states,  nor  to  descend  to  a  detailed  notice  of  all.  the  decisions 
upon  special  enactments  or  charters.  It  must  suffice  to  state  the 
leading  principles  which  the  adjudications  have  established,  and 
to  refer  to  the  authorities  for  a  more  full  illustration  and  develop- 
ment of  the  subject.  In  the  outset  it  is  proper  to  observe  that 
a  fundamental  consideration  in  the  construction  and  applica- 
tion of  these  constitutional  provisions  is,  that  they  have  been 
found  necessary  to  secure  adequate  protection  to  private  prop- 
erty, and  that  they  should  be  vigorously  upheld  in  their  full 
extent  and  fair  meaning.  In  construing  statutes  or  charters 
delegating  the  power  of  eminent  domain,  and  pointing  out  the 
mode  of  exercising  it,  it  is  the  duty  of  the  judicial  tribunal  to 
insist  that  every  provision  intended  for  the  benefit  of  the 
owner  shall  be  complied  with  before  he  shall  be  divested  of  his 
property.  Except  so  far  as  the  mode  of  procedure  is  ordained 
by  the  constitution,  it  is  competent  for  the  legislature  to  pre- 
scribe it,  and  the  mode  prescribed  must,  as  we  have  seen,  be 
strictly  r.nd  guardedly  pursued,  although  unreasonable  nicety 
should  not  be,  and  is  not,  required.1 

§  478.  If  the  act  or  charter  authorizing  the  appropriation 
of  the  property  itself  provides  a  specific  remedy  to  the  land 
owner,  by  which  the  amount  of  his  compensation  shall  be 
ascertained,  that  method  is  usually  regarded  as  exclusive.  So 
long  as  the  municipality  keeps  within  its  legislative  grant  of 
power,  it  is  not  liable  to  a  common  law  action,  nor  will  it  be 
enjoined;  yet  if  it  violates  or  transcends  its  authority,  the  land 
owner  may  bring  his  action  of  case  or  trespass,  and  equity  will 
frequently  grant  an  injunction  to  restrain  an  illegal  use  or 
appropriation  of  private  property.2 

1  Eedfleld  on  Railways,  Sec.  64,  and  notes ;  ib.  Sec.  72. 

2  See  authorities  cited,  supra,  Sec.  476,  note.  This  subject  is  very  fully 
treated  in  Eedfleld  on  Railways,  Sec.  8,  p.  336  (3d  edition).  See,  also,  1 
American  Railway  Cases,  166-171,  note,  and  cases  cited  and  reviewed; 
Floyd  v.  Turner,  23  Texas,  293;  Cushman  v.  Smith,  34  Maine,  247;  Sower  v. 
Philadelphia,  35  Pa.  St.  231. 


462  MUNICIPAL   CORPORATIONS.  [CH.  XVI. 

§  479.  "When  a  street  is  finally  established,  the  party  whose 
land  has  been  taken  is  entitled  to  -payment,  although  the  street 
has  not  been  opened.1  So  it  is  generally  held  that  such  a 
party  is  entitled  to  payment  when  the  report  of  the.  commis- 
sioners of  assessment  has  been  finally  acted  on  and  confirmed, 
or  when,  before  confirmation,  the  municipal  authorities  have 
taken  and  retain  actual  use  of  his  property.2  When  the  own- 
er's right  to  damages  is  vested  or  complete,  he  may,  in  proper 
cases,  sue  the  municipality  therefor,  or  have  a  mandamus  to 
compel  it  to  pay  or  to  proceed  to  collect  the  assessments  which 
constitute  the  fund  from  which  payment  must  come.3 

§  480.  In  the  absence  of  controlling  constitutional  pro- 
visions, it  is  competent  for  the  state  to  authorize  municipal 
corporations  to  take  private  property  for  public  use  without  first 
making  payment;  but  it  is  not  usual  for  the  legislature  to  confer 
this  power,  and,  even  if  it  does,  it  is  still  necessary,  by  some 
enactment,  that  it  shall  make  certain  and  adequate  provision 
by  which  the  owner  can  coerce  compensation,  through  the 
judicial  tribunals  or  otherwise,  without  unreasonable  delay.* 

'  Shaw  v.  Charlestown,  3  Allen,  538 ;  Philadelphia  v.  Dickson,  38  Pa.  St. 
247;  Griggs  v.  Foote,  4  Allen,  195.  The  constitutional  provision  against 
taking  private  property  until  compensation  be  made,  means  taking  the 
property  from  the  owner  and  actually  applying  it  to  the  use  of  the  public. 
A  survey  and  other  preliminary  steps  are  not  a  taking,  within  the  meaning 
of  the  constitution.  But  until  the  compensation  the  owner  is  entitled  to 
has  been  made  or  tendered  as  required  by  law,  a  street  cannot  be  opened 
or  used,  and  an  entry  to  grade  or  prepare  the  ground  for  a  street  would  be 
illegal  and  a  trespass :  Stewart  v.  Baltimore,  7  Md.  500, 1855.  That  prelim- 
inary surveys  may  be  authorized  by  the  legislature  without  making  com- 
pensation therefor,  and  that,  when  so  authorized,  are  not  trespasses :  See 
authorities  cited  in  Redfied  on  Railways,  Sec.  66. 

2  Ante,  Sees.  474,  475.    See  Johnson  v.  Almeda,  14  Cal.  106. 

8  Mayor,  &c.  v.  Richardson,  1  Stew.  &  Port.  (Ala.)  12,  1831 ;  Shaw  v. 
Charlestown,  3  Allen  (Mass.),  538;  Philadelphia  v.  Dyer,  41  Pa.  St.  463; 
Philadelphia  v.  Dickson,  38  ib.  247 ;  State  v.  Hug,  44  Mo.  116 ;  State  v.  Keo- 
kuk (mandamus  to  collect  assessment),  9  Iowa,  438;  Bexford  v.  Knight,  11 
N.  Y.  (1  Kern.)  308;  Higgins  v.  Chicago,  18  111.  276;  Rome  v.  Jenkins 
(action  for  value),  30  Geo.  154,  1860.  A  city  is  not  primarily  liable  for  ben- 
efits assessed  against  individuals:  Shaffner  v.  St.  Louis,  31  Mo.  264. 

*  People  v.  Hayden,  6  Hill  (N.  Y.),  359;  Rexford  s.  Knight,  11  N.  Y.  308 ; 
Cooley,  Const.  Lim.  560;  Curran  v.  Shattuck,  24  Cal.  427;   McCann  v.  Coun- 


CH.  XVI.]  EMINENT   DOMAIN.  463 

.  Either  by  constitutional  provision  or  legislative  enactment,  the 
almost  invariable,  and  certainly  the  just,  course,  is  to  require 
payment  to  precede  or  to  accompany  the  act  of  appropria- 
tion.1 

§  481.  In  the  absence  of  special  constitutional  restrictions 
upon  the  power  of  the  legislature,  it  may  be  regarded  as  settled 
by  repeated  adjudications  in  different  states,  that  authority  may 
be  conferred  by  the  legislature  upon  municipal  corporations  to 
open  streets,  and  to  apportion  the  damages  awarded  or  found  due 
to  those  whose  lands  are  taken  among  the  lots  benefited  by  the  im- 
provement, and  to  make  the  amount  thus  apportioned  or 
assessed  a  lien  thereon.  The  legislature  may,  in  its  discretion, 
authorize  the  whole  expense  to  be  assessed  upon  the  lots  front- 
ing on  the  street  to  be  opened  or  improved,  thus  treating  the 
adjacent  property  as  exclusively  benefited,  or  it  may  authorize 
the  assessment  to  be  made  upon  other  property  in  addition,  or 
it  may  provide  for  the  payment  of  damages,  in  whole  or  in 

ty,  7  Cal.  121.  Authority  to  towns  and  cities  to  open  streets,  and  to  take 
private  property  for  public  use,  without  first  making  compensation  therefor, 
has  frequently  been  held  legal  in  the  absence  of  special  constitutional  pro- 
visions requiring  payment  before  possession  or  use  be  enjoyed;  Dronberger 
v.  Reed,  11  Ind.  420,  1858;  McCormick  v.  Lafayette,  1  Ind.  (Cart.)  48, 1848; 
Bloodgoodi.  Railroad  Co.  18  Wend.  1 ;  Beekman  v.  Railroad  Co.  3  Paige,  Ch.  R. 
45;  Commissioners  v.  Bowie,  34  Ala.  461.  Lafayette*.  Bush,  19  Ind.  326.  If  a 
mode  of  obtaining  compensation  is  specifically  provided  for,  compensation, 
it  has  been  held,  must  be  sought  in  that  way,  and  not  by  action,  and  in 
that  in  such  case,  the  doctrine  of  cumulative  remedies  is  not  applicable : 
Kimble  v.  Canal  Company,  1  Ind.  (Cart.)  285,  1848 ;  Colking  v.  Baldwin,  4 
Wend.  667;  Railroad  Company  v.  Smith,  6  Ind.  249;  Railroad  Company  v. 
Connelly,  7  Ind.  32;  Railway  Company  v.  Oakes,  20  Ind.  9, 1863;  Mitchell  v. 
Turnpike  Company,  3  Humph.  456;  Brown  v.  Beatty,  34  Miss.  227;  Dodge 
v.  Commissioners,  3  Met.  380. 

1  2  Kent  Com.  339,  note;  Redfield  on  Railways,  147;  Co'ton  v.  Rossi,  9 
Cal.  595,  1858;  McCann  v.  County,  7  Cal.  121.  An  injunction  was  granted 
to  restrain  a  municipal  corporation  with  very  limited  powers  of  taxation 
from  opening  a  street  until  adequate  security  for  compensation  be  given : 
Keene  v.  Bristol,  26  Pa.  St.  46.  Under  a  statute  of  Pennsylvania,  land  taken 
for  corporate  purposes  vests  in  the  corporation  in  fee  on  payment,  and  the 
corporation  is  not  bound  to  see  to  the  application  of  the  purchase  money : 
Crangle  v.  Harrisburg,  1  Barr  (Pa.),  132.  When  payment  of  damages  is  re- 
quired within  a  limited  time,  or  proceedings  become  void,  see  Common- 
wealth v.  County  Commissioners,  2  Whart.  (Pa.)  286. 


464  MUNICIPAL   CORPORATIONS.  [CH.  XVI. 

p^rt,  from  the  general  treasury.1     The  compulsory  acquisition  of 
property  for  streets,  or  other  public  purposes,  and  the  payment 

1  People,  v.  Mayor,  &c.  of  Brooklyn,  4  N.  Y.  (4  Comst.)  419,  1851,  the  lead- 
ing case  upon  the  subject.  Approved,  Commonwealth  v.  Woods,  44  Pa.  St. 
113;  Stroud  v.  Philadelphia,  61  Pa.  St.  255;  Scovill  v.  Cleaveland,  1  Ohio  St. 
126, 135;  Alexanders  Baltimore,  5  Gill  (Md.),  1847;  Moale  v.  Baltimore,  5 
Md.  314,  1854;  expressly  approving,  People  v.  Mayor,  &c.  of  Brooklyn,  su- 
pra,■  McMasters  v,  Commonwealth,  3  Watts,  292, 1834;  Livingston  v.  Mayor, 
8  Wend.  85;  Schenley  v.  Allegheny,  25  Pa.  St.  128,  1854;  Betts  v  Williams, 
burg,  18  ib.  26;  Lexington  v.  McQuillian's  Heirs,  9  Dana  (Ky.),  513,  1853; 
Williams  v.  Cammack,  27  Miss.  209,  224,  1854;  Nichols  v.  Bridgeport,  23 
Conn.  189,  207.  See,  also,  McGehee  v.  Mathis  (levee  tax),  21  Ark.  40,  i860; 
Argenti  v.  San  Francisco,  16  Cal.  255;  Emery  v.  Gas  Company,  28  Cal.  345; 
Howard  v.  Church,  18  Md.  451 ;  Peoria  v.  Kidder,  26  111.  351 ;  State  v.  Port, 
age,  12  Wis.  562 ;  Holmes  v.  Jersey  City,  1  Beasl.  (N.J.)  264;  Cuming  v. 
Mayor,  &c.  of  Brooklyn,  1 1  Paige,  596 ;  White  v.  Mayor,  &c.  2  Swan  (Tenn.) 
364,  1852;  Palmyra  v.  Morton,  25  Mo.  593, 1857;  Egyptian  Levee  Company, 
27  Mo.  495;  LockwoOd  v.  St.  Louis,  24  Mo.  20,  1851;  Smith  v.  Aberdeen,  25 
Miss.  458,  1853 ;  Municipality  o.  Dunn,  10  La.  An.  57;  Cruikshank  v.  City 
Council,  1  McCord  (South  Car.),  360,  1821;  Williams  v.  Detroit,  2  Mich.  560; 
Cone  v.  Hartford,  28  Conn.  363,  374;  Wallace  v.  Shelton,  14  La.  An.  498; 
Clapp  v.  Hartford,  35  Conn.  66;  Dorgan  v.  Boston,  13  Allen  (Mass.),  223. 
Post,  Chap.  XIX.  on  Taxation.  "Under  a  constitutional  provision  giving  the 
power  of  taxation  by  assessment,  and  another  which  guarantees  to  owners 
of  land  taken  for  public  use  full  compensation,  "without  deduction,  for  ben- 
efits,'' an  assessment  may  be  made  upon  lands  fronting  on  a  new  street  laid 
out  through  it,  to  reimburse  the  amount  of  compensation  paid  the  owner 
for  the  land  taken  for  the  street:  Cleveland  v.  Vick,  18  Ohio  St.  303,1868. 
See  Chicago  v.  Larned,  34  111.  203,  1864,  criticising  The  People  v.  Mayor,  &c. 
of  Brooklyn,  supra,  and  the  decisions  in  other  states  which  follow  it,  and 
holding  them  inapplicable  in  that  state  under  its  constitution.  S.  P.  Qtta^ 
wa  v.  Spencer,  40  111.  211;  S.  C.  36  111.  211.  In  the  case  of  The  State  v. 
Charleston,  12  Eich.  (South  Car.)  Law,  702,  1860,  the  power  qf  the  legisla, 
ture  of  that  state  to  authorize  local  assessments  to  pay  for  local  improve- 
ments was  very  fully  considered  by  the  Court  of  Errors.  4  portion  qf  a 
street  was  widened  by  taking  a  strip  of  land  off  the  lots  on  one  side  and 
adding  it  to  the  street,  and  the  expense,  pursuant  to  an  act  of  the  legisla* 
ture,  was  ordered  tp  be  assessed  upon  the  proprietors  of  houses  and  lots  qn 
both  sides  of  the  street.  The  lot  owners  on  the  opposite  side  of  the  street, 
whose  lands  were  not  taken  for  the  street,  but  who  were  assessed  to  pay 
the  expense,  cqntested  the  constitutionality  of  the  statute  authorizing  this 
to  be  dqne.  The  Court  of  Errors  heldthe  act  to  be  unconstitutional.  No 
reference  is  made  to  the  decisions  in  other  states,  and  although  the  consti- 
tutjqns  of  N ew  York  and  South  Carolina  are  not  literally  alike,  the  reason^ 
ing  qf  the  court  is  not  reconcilable  with  that  in  the  case  of  People  v.  Mayor, 
&c,  of  Brooklyn;  Still  that  case  has  been  very  generally  followed  and  its 
V easoning  apprqyed.  as  sqund.,  as  will  be  seen  on  an  examination  of  the 
cases  above  cited, 


CH.  XVI. J  EMINENT   DOMAIN.  465 

therefor  in  any  of  the  ahove  modes,  involve  the  exercise  of  tw,q 
different  and  high  prerogative  or  sovereign  powers,  namely, 
that  of  the  eminent  domain,  so  called,  by  which  the  property  is 
taken,  and  that  of  taxation  (which  includes  assessments  upon 
the  property  benefited  or  legislatively  supposed  to  be  benefit- 
ed), by  which  compensation  is  made  to  those  whose  property 
has  been  thus  appropriated.  We  have  already  pointed  out  the 
usual  constitutional  limitations  upon  the  power  of  eminent  do- 
main. What  limitations  exist  upon  the  power  of  taxation 
must  be  found  in  the  nature  of  the  power  itself,  and  in  express 
or  implied  restrictions  in  the  organic  law;  otherwise,  the 
power  is  supreme,  transcendent,  and  without  theoretical  limits. 
The  subject  of  taxation  and  of  assessments  for  local  improve- 
ments, and  the  limitations  upon  the  power,  will  be  hereafter 
considered,  and  need  not,  therefore,  be  referred  to  in  detail  in 
this  place.1  An  assessment  against  abutters  for  benefits  re- 
ceived from  the  opening  of  a  street  does  not  contravene  the 
provision  of  the  constitution,  "that  all  property  subject  to  tax- 
tion  shall  be  taxed  in  proportion  to  its  value."  2  ISTor  is  an 
assessment  upon  lands  fronting  on  a  street,  to  reimburse  the 
amount  paid  the  owner  for  land  taken  from  him  for  a  street  in 
violation  of  the  provision  of  the  constitution,  which  declares 
the  compensation  to  be  paid  to  a  party  for  his  land  taken  for 
public  use,  shall  be  "without  deduction  for  benefits."  3 

§  482.  The  tribunal  by  which  the  amount  of  compensation 
to  the  land  owner  is  to  be  determined  must  be  prescribed  by 
positive  law.  Some  of  the  state  constitutions,  in  terms,  require 
that  the  compensation  shall  be  assessed  by  a  jury,  which  pre- 
sumptively means  such  a  body  as  under  the  constitution  and 
laws  of  the  particular  state  makes  a  lawful  jury.  Commission- 
ers appointed  ex  parte,  and  without  opportunity  of  challenge, 
are  not  a  jury.     Where  the  right  to  an  assessment  by  a  jury  is 

1  See  chapter  on  Taxation  and  Local  Assessments,  post. 

2  Garrett  v.  St.  Louis,  25  Mo.  505,  1857.  So,  under  a  constitution  which 
requires  that  all  taxation  shall  be  equal  and  uniform  throughout  the  state: 
Draining  Company  Case,  11  La.  An.  338.  See  chapter  on  Taxation  and  Lo- 
cal Assessments,  post. 

3  Cleveland  v.  Wick,  18  Ohio  St.  303.  Assessment  for  benefits  is  not  the 
same  as  deduction  for  benefits :  lb. 

59 


466  MUNICIPAL    CORPORATIONS.  [CH.  XVI. 

specifically  secured  by  constitutional  provision,  this  is  a  right 
of  which  the  property  owner  cannot  be  deprived  by  any  act  of 
the  legislature,  nor  by  its  failure  to  provide  for  an  assessment 
in  this  manner.  He  may  waive  the  right,  but  he  cannot  be 
deprived  of  it  without  his  consent.  Although  the  right  to  an 
assessment  by  a  jury  of  twelve  men  be  given  by  the  constitu- 
tion, the  assessment  may,  under  legislative  authority,  be  made 
in  the  first  instance  by  commissioners,  if,  by  appeal  or  other 
transfer,  to  a  common  law  court,  an  unfettered  right  to  an  as- 
sessment by  a  jury  under  judicial  direction  exists  or  is  pro- 
vided.1 

1  Lamb  v.  Lane,  4  Ohio  St.  167, 1854.  The  able  opinion  of  Thurman,  C.  J., 
and  its  reasoning,  must  command  general  assent.  The  constitution  of  Ohio 
(Article  1,  Sec.  19)  provides,  that  "  Where  private  property  shall  be  taken 
for  public  use,  a  compensation  therefor  shall  first  be  made  in  money,  or 
first  secured  by  a  deposit  of  money;  and  such  compensation  shall  be 
assessed  by  a  jury  without  deduction  for  the  benefits  to  any  property  of  the 
owner."  The  court  held  that  the  word  "jury,"  as  thus  used,  means  a  tribu- 
nal of  twelve  men  presided  over  by  a  court,  and  hearing  the  allegations, 
evidence,  and  arguments  of  the  parties,  yet  they  may  be  sent  to  view  the 
premises.  The  court  also  held,  that  an  assessment  might  be  made  in  the 
first  instance  by  viewers,  if  the  right  of  appeal  be  given  to  a'court  in  which 
the  damages  may  be  assessed  by  a  constitutional  jury :  S.  P.  Shaver  v.  Star- 
rett,  4  Ohio  St.  494;  Wills  v.  County  Eoad,  7  Ohio  St.  16.  Construction  of 
similar  provision  of  constitution  of  Iowa  (Art.  1,  Sec.  18),  see  Des  Moines  v. 
Layman,  21  Iowa,  153,  1866,  in  which  it  was  not  denied  that  the  constitu- 
tion gave  the  right  to  have  the  amount  determined  by  a  jury,  but  it  was 
held  by  the  majority  of  the  court  that  the  party,  by  adopting  the  special 
mode  of  review  pursued  by  him  in  that  case,  was  not  entitled,  as  of  right, 
to  an  assessment  by  a  jury. 

Section  7  of  Article  1,  of  the  constitution  of  1846  of  New  York,  provided 
that  "When  private  property  shall  be  taken  for  any  public  use,  the  com- 
pensation to  be  made  therefor  shall  be  ascertained  by  a  jury  or  by  not 
less  than  three  commissioners  appointed  by  a  court  of  record  as  shall  be 
prescribed  by  law."  It  was  held,  in  view  of  a  long  legislative  usage  in  res- 
pect to  the  subject  of  assessing  damages  and  the  mode,  that  the  term 
"jury,"  as  used  in  the  constitution,  did  not  necessarily  import  a  tribunal 
consisting  of  twelve  men,  acting  only  upon  a  unanimous  determination, 
but,  on  the  contrary,  was  used  to  describe  a  body  of  jurors  of  different 
numbers,  and  deciding  by  majorities  or  otherwise,  as  the  legislature  in  each 
instance  directed.  But  in  the  absence  of  such  usage,  Johnson,  J.,  who  de- 
livered the  opinion  of  the  court,  said  that  without  a  shadow  of  doubt  rest- 
ing on  his  mind,  he  should  be  of  opinion  that  the  term  "jury"  "imports  a 
jury  of  twelve  men,  whose  verdict  is  to  be  unanimous.  Such,"  he  con- 
tinues, "  must  be  its  acceptation  to  every  one  acquainted  with  the  history 


CH.  XVI.]  EMINENT   DOMAIN.  467 

§  483.  The  determination  of  the  question,  "What  is  the 
value  of  property  taken,  or  what  is  the  amount  of  damage  sus- 
tained by  the  taking,  is  undeniably  judicial  in  its  nature,  and 
peculiarly  adapted  for  decision  by  a  jury  under  the  direction 
of  the  court.     Yet  it  has  been  held  that  the  ordinary  provision 

of  the  common  law,  and  aware  of  the  high  estimation  in  which  that  insti- 
tution, so  constituted,  has  for  so  long  a  period  been  held: "  Cruger  v.  Rail- 
road Company,  12  N.  Y.  (2  Kern.)  190,  1854;  Brooklyn  v.  Patchen,  8  Wend. 
47,  1831;  Campau  v.  Detroit,  14  Mich.  276,  1866;  May  v.  Railroad  Company, 
3  Wis.  219.  Under  the  new  constitution  of  Illinois,  the  land  owner  has  a 
right  to  a  jury  to  assess  his  damages  if  he  demands  it:  The  People  v.  The 
Judge,  &c.  111.  Supreme  Court,  April,  1872. 

That  a  special  constitutional  provision,  giving  the  right  to  an  assessment 
of  damages  by  a,  jury,  presumptively  means  more  than  a  mere  commission, 
however  numerous,  and  means  a  tribunal  under  judicial  supervision 
and  control,  is  made  more  apparent  when  the  occasion  of  adopting  such  a 
provision  is  considered.  This  aspect  of  the  subject  is  referred  to  by  one  of 
the  judges  in  Des  Moines  v.  Layman,  21  Iowa,  158,  who  says:  "The  taking 
of  private  property,  without  the  consent  of  the  owner,  is  the  exercise  of  one 
of  the  highest  powers  of  government.  It  has  been  much  abused  by  the  great 
powers  which  have  been  conferred  upon  municipal  corporations,  allow- 
ing them  to  judge  of  the  necessity,  and  their  citizens  to  act  by  a  commission 
from  the  city  council  or  some  subordinate  magistrate  or  court,  as  a  jury  or 
body  to  fix  the  amount  of  compensation.  To  prevent  such  abuses,  and  to 
give  proper  security  and  safeguards  to  the  property  owner,  it  was  very 
wisely  provided  in  the  new  constitution  of  the  state,  that  private  property 
should  not  be  taken  for  public  use  until  'the  damages  shall  be  obsessed  by.  a 
jury : '  Bill  of  Rights,  Sec.  18.  '  The  right  of  trial  by  jury  shall  remain  invi- 
olate, but  the  general  assembly  may  authorize  a  trial  by  a  jury  of  a  less 
number  than  twelve  in  the  inferior  courts : '  lb.  Sec.  9.  By  these  provis- 
ions, the  right  to  an  assessment  of  his  damages  by  a,  jury  is  secured  by  the 
constitution  to  the  defendant.  No  assessment  of  them  has  been  made  by  a 
jury  unless  the  three  men  appointed  by  the  county  court  are  to  be  regarded 
as  a  jury.    I  do  not  so  regard  them." 

The  constitution  of  Maryland  provides  'that  no  private  property  shall  be 
taken  for  public  use  witnout  just  compensation,  as  agreed  upon  between 
the  parties  or  awarded  by  a  jury,  being  first  paid  or  tendered  to  the  party 
entitled  to  such  compensation."  Under  this  the  legislature  may  pass  a 
law  authorizing  commissioners  to  assess  the  value  of  the  property  if  the 
law  secures  to  the  owner  the  right  of  a  jury  trial,  upon  an  appeal,  to  be  taken 
in  a  specified  reasonable  time ;  neglect  or  refusal  to  appeal  being  regarded 
as  a  waiver  of  the  right  to  have  the  damages  awarded  by  a  jury:  Stewart  v. 
Baltimore,  7  Md.  500, 1855.  See,  also,  State  o.  Graves,  19  Md.  351 ;  Lumsden 
v.  Milwaukee,  8  Wis.  485;  Alexander  v.  Baltimore,  5  Gill,  383;  M.  E. 
Church  v.  Baltimore,  6  ib.  391;  Morford  v.  Barnes,  8  Yerg.  444;  Beers  v. 
Beers,  4  Conn.  535;  McDonalds.  Schell,  6  Serg.  &  Rawle, 240;  Sharpless  v. 
West  Chester,  1  Grant  Cas.  (Pa.)  257. 


468  MUNICIPAL   CORPORATIONS.  [CH.  XVI. 

as  ,to  the  right  of  trial  by  jury  in  civil  cases  has  no  relation  to 
original  assessments  in  such  cases;  and  that  in  the  absence  of 
Bpecial  provision  in  the  organic  law^  giving  the  right  to  have 
a  jury  assess  the  damages,  it  is  competent  for  the  legislature  to 
provide  for  assessments  by  any  other  just  mode,  and  to  con- 
clude the  owner  as  to  the  amount  without  giving  him  the 
right  to  be  heard  before  a  jury.1 

§  484.  By  the  constitution  of  New  York  it  is  provided  that 
the  compensation  "shall  be  ascertained  by  a  jury,  or  by  not  less 
than  three  commissioners  appointed  by  a  court  of  record."  This 
language  in  respect  to  commissioners  was  considered  by  the 
Court  of  Appeals  to  imply  that  the  commissioners  were  to  be 
selected  by  the  court,  and  assumes  that  in  such  selection  the 
court  will  exercise  judgment  in  making  fit  appointments,  and 
it  was  held  that  a  selection  of  appraisers  by  lot,  and  an  ap- 
pointment thereon  by  a  court  of  record,  would  Dot  be  in  com- 
pliance with  the  constitutional  provision.2  It  was  also  decided, 
that  under  this  provision  it  is  not  competent  for  the  legislature 

1  Livingstone.  Mayor,  &c.  8  Wend.  85,  1831;  Beekman  v.  Railroad  Com- 
pany, 3  Paige,  75 ;  Petitionof  Mt.  Washington  County,  35  -N.  H.  134 ;  State 
v.  Jersey  City,  2  Dutch.  444;  Sedgw.  Stat,  and  Const.  Law,  529;  Cooley, 
Const.  Lim.  563 ;  Railroad  Company  v.  Heath,  9  Ind.  558 ; .  Hymes  v.  Ayde- 
lott,  26  Ind.  431 ;  Heyneman  v.  Blake,  19  Cal.  579;  Koppikus  .v.  Commis- 
sioners, 16  Cal.  248;  Dalton  v.  Northampton,  19  N.  H.  362.  As  to  right  of 
trial  by  jury  when  an  appeal  is  authorized  to  a  court  of  record:  Railroad 
Company  v.  Miller,  30  Ind.  209;  Railroad  Company  v.  Heath,  9  Ind.  558; 
Connelly  v.  Griswold,  7  Iowa,  416;  Ragatz  v.  Dubuque,  4  Iowa,  343;  People 
v.  The  Judge,  &c.  111.  Supreme  Court,  April,  1872. 

The  constitution  of  Wisconsin  contained  a  provision  (Art.  11,  Sec.  2)  re- 
quiring "the  necessity"  for  the  appropriation  of  private  property  to  "be 
first  established  by  the  verdict  of  a  jury."  In  the  charter  of  Milwaukee  it 
was  enacted  that  a  jury  of  six  freeholders  should  be  appointed  by  the 
council  to  decide  upon  the  necessity  of  taking  land  for  streets,  and  the 
amount  of  compensation,  and  this  provision  of  the  charter  was  held  to  con- 
travene the  constitution,  since  the  jury  so  called  were  not  required  by  the 
charter  to  be  sworn,  and  since  the  charter  gave  the  council- power  to  con- 
firm the  report  of  the  jury,  and  declared  that  such  confirmation  should  be 
conclusive:  Lumsden  v.  Milwaukee,  8  Wis.  485.  There  is  a  similar  provis- 
ion in  the  constitution  of  1851,  of  Michigan:  People  v.  Kimball,  4  Mich.  95; 
Campau  v.  Detroit,  14  Mich.  276. 

2  Cruger  v.  Railroad  Company,  12  N.  Y.  (2  Kern.)  190,  1854. 


CH.  XVI.]  EMINENT    DOMAIN.  469 

to  authorize  the  common  council  of  a  city  to  appoint  apprais- 
ers to  ascertain  the  compensation  to  owners  for  property  taken 
under  the  power  of  eminent  domain.1 

§  485.  The  charter  of  a  city  gave  it  power  to  take  private 
property  for  streets,  with  a  proviso  that  damages  should  be  as- 
sessed, by  a  jury,  to  those  prejudiced.  A  jury  acted  and  as- 
sessed damages  to  a  property  owner.  It  was  held,  that  a  sub- 
sequent resolution  of  the  council,  reciting  "that  upon  full 
examination  the  jury  could  not  have  had  a  correct  view  of  the 
case  before  them,"  and  appropriating  a  larger  sum  as  dama- 
ges, was  binding  upon  the  corporation,  the  court  being  of 
opinion  that  the  corporation  had  the  right  to  contract  or  stip- 
ulate with  the  land  owner  as  to  damages  without  the  inter- 
vention of  a  jury,  and  that  this  included  the  right  to  disregard 
their  finding,  and  proceed  to  make  a  settlement  as  if  they  had 
never  been  summoned.2 

§  486.  Concerning  the  amount  of  damages,  or  the  principles 
upon  which  compensation  to  the  owner  whose  property  is 
taken  should  be  measured,  there  are  no  fixed  rules  embracing 
the  whole  subject  universally  applicable  throughout  the  differ- 
ent states.  In  some  of  the  states  provision  is  made  in  their  or- 
ganic law,  that  the  compensation  shall  be  in  money,  and  with- 
out deduction  for  benefits.  Similar  provisions  are  sometimes 
made  in  the  charter  or  statute  authorizing  the  appropriation, 
and  which  exert  a  modifying  influence  on  the  rules  of  law,  as 
previously  held  in  the  same  state  or  elsewhere.  In  determin- 
ing the  quantum,  of  damages,  regard  must  always  be  had  to  any 
special,  constitutional,  or  statutory  provisions  relating  to  the 
subject,  and  the  previous  course  of  decision  in  which  those 
provisions  have  not  unfrequently  originated.  In  states  where 
the  subject  is  not  expressly  regulated  by  positive  law,  the 
books  abound  in  cases  which  cannot  be  reconciled  respecting 

1  Clark  v.  Utica,  18  Barb.  451. 

2  Mayor,  &c.  v.  Richardson,  1  Stew.  &  Port.  (Ala.)  12, 1831.  This  case  fur- 
ther holds,  that  on  the  consent  of  the  land  owner  to  the  resolution,  he 
could  maintain  an  action  for  the  recovery  of  the  amount,  and  that  the  res- 
olution was  an  admission,  prima  fade  binding  on  the  corporation,  of  the 
right  of  the  owner  to  the  land  appropriated :  lb. 


470  MUNICIPAL   CORPORATIONS.  [CH.  XVI. 

what  is  and  is  not  proper  to  be  taken  into  consideration  in  the 
way  of  benefits  on  the  one  hand,  and  of  injuries  on  the  other, 
to  the  proprietor,  whose  property  is  taken  for  some  public 
work  or  improvement.  The  ultimate  inquiry  is  not  a  complex 
one — it  is  simply,  What  is  the  damage  which  the  owner  will 
sustain  in  consequence  of  the  proposed  appropriation  of  his 
property?  But  the  elements  which  enter  into  this  inquiry, 
when  the  matter  is  left  at  large  to  the  courts  without  legisla- 
tive rule,  are  far  from'  being  easy  of  apprehension  or  applica- 
tion. Cases,  however,  in  which  the  appropriation  is  by  muni- 
cipal agencies  for  streets,  are  not  apt  to  present  as  many  diffi- 
culties as  are  met  with  when  the  appropriation  is  for  railway  or 
other  like  purposes. 

§  487.  The  author  must  content  himself  with  a  statement 
of  those  rules  or  principles  which  he  believes  to  be  the  best 
supported  by  reason,  and  which  are  sufficient  to  embrace  the 
cases  which  ordinarily  arise  in  connection  with  the  exercise  of 
the  right  of  eminent  domain  by  municipalities,  whose  chief 
occasion  for  the  power  is  to  open  and  establish  streets  and 
ways.  The  rules  laid  down  are,  of  course,  subject  to  modifica- 
tion by  any  special  constitutional  provision  or  legislative  enact- 
ment varying  them.  1.  If  the  proposed  improvement  takes 
all  of  the  land  of  the  owner,  the  case,  as  to  the  amount  of  com- 
pensation, is  comparatively  easy  of  solution.  He  is  entitled  to 
the  fair  and  full  market  or  pecuniary  value  of  the  property  at 
the  time  it  is  appropriated,  but  to  no  more.  This  statement 
of  the  rule  excludes  from  consideration  all  such  elements  as 
that  the  owner  does  not  desire  to  sell,  or  that  the  property  is 
endeared  to  him  by  association,  and  the  like.1  But  it  includes, 
and  justly  so,  the  full  value  at  the  time  it  is  taken,  no  matter 
what  may  have  caused  that  value,  and  although  it  may  have 
shared,  with  other  property,  in  the  benefits  of  the  proposed 
improvement.  The  transaction  is  a  compulsory  purchase,  the 
compulsion,  however,  coming  from  the  public,  and  the  amount 
to  which  the  owner  is  entitled  is  not  simply  the  value  of  the 
property  at  forced  sale,  but  such  sum  as  the  property  is  worth 

1  Furman  Street,  17  Wend.^650;  "William  and  Anthony  Streets,  19  Wend. 
678. 


CH.  XVI.]  EMINENT    DOMAIN.  471 

in  the  market,  if  persons  desiring  to  purchase  Avere  found  who 
were  willing  to  pay  its  just  and  full  value,  but  no  more.1 
2.  If,  however,  as  most  commonly  happens,  part  only  of  the 
property  is  to  be  taken,  more  embarrassing  questions  are  apt  to 
arise,  in  determining  which  regard  must  be  had  to  the  condi- 
tion as  to  shape,  use,  and  convenience,  in  which  the  residue 
of  the  property  will  be  left,  and  how  its  value  will  be  affected 
by  that  which  is  taken  for  the  proposed  improvement.  And 
here,  most  usually,  arises  the  difficult  inquiry,  "What  benefits 
and  what  injuries  are  proper  to  be  regarded  as  affecting  the 
question  of  damages?  Now  benefits  and  injuries  are  of  two 
kinds:  I.  General  or  public,  being  such  as  are  not  peculiar 
to  the  particular  proprietor,  part  of  whose  property  is  taken, 
but  those  benefits  in  which  he  shares,  and  those  injuries 
which  he  sustains,  in  common  with  the  community  or  locality 
at  large.  II.  Special  or  local,  being  those  peculiar  to  the  par- 
ticular land  owner,  part  of  whose  property  is  appropriated,  and 
which  are  not  common  to  the  community  or  locality  at  large, 
such,  on  the  one  hand,  as  rendering  his  adjoining  lands 
more  useful  and  convenient  to  him,  or  otherwise  giving  them 
a  peculiar  increase  in  value,  and,  on  the  other,  rendering  them 
less  useful  or  convenient,  or  otherwise,  in  a  peculiar  way,  di- 
minishing their  value.  The  former  class  of  benefits  or  inju- 
ries—  namely,  those  which  are  general,  and  not  special  —  have, 
according  to  the  almost  uniform  course  of  decision,  no  place  in 
the  inquiry  of  damages,  and  cannot  be  considered  for  the  pur- 
pose of  reducing  the  amount,  being  too  indirect  and  contin- 
gent. But  injuries  which  specially  affect  the  proprietor,  or 
benefits  which  are  specially  conferred  upon  his  adjacent  prop- 
erty, part  of  which  is  taken,  are  to  be  considered,  unless,  by 
the  constitution  of  the  state  or  legislative  enactment,  all  bene- 
fits, special  as  well  as  general,  are  to  be  excluded.2 

1  Railroad  Company  v.  Doughty,  2  Zabr.  495,  1850;  Cooley,  Const.  Lim. 
565 ;  Giesy  v.  Eailroad  Company,  4  Ohio  St.  308,  1854. 

2  Meacham  v.  Railroad  Company,  4  Cush.  291, 1849;  Dickenson  v.  Fitch- 
burg,  13  Gray,  546;  Upton  v.  Railroad  Company,  8  Cush.  600, 1851 ;  Robbins 
v.  Railroad  Company,  6  Wis.  636;  Far  well  v.  Cambridge,  11  Gray,  413; 
Dwight  v.  Commissioners,  11  Cush.  201;  Howard  v.  Providence,  6  Rh.  Is. 
514.  A  learned  jurist,  and  experienced  and  able  judge,  thus  expresses  his 
views  on  this  subject:    "When  only  a  portion  of  a  parcel  of  land  is  appro- 


472  MUNICIPAL   CORPORATIONS.  [CH.  XVI. 

§  488.  Applying  these  principles,  a  proper  and  practical  rule 
would  be  to  first  ascertain  the  fair  market  value  of  the  entire 
premises,  part  of  which  is  proposed  to  be  taken,  not  necessa- 
rily irrespective  of  such  improvement,  but  irrespective  of  the 
causes  which  have  contributed  to  that  value,  then  ascertain  the 
like  value  of  the  premises  in  the  condition  in  which  they  will 
be  after  the  part  is  taken,  without  deduction  for  any  general 
benefit  which  will  result  from  the  proposed  improvement,  but 
unless  specially  excluded  by  positive  law,  deducting  special 
benefits  as  above  defined,  and  the  difference  in  value,  be  it 
more  or  less  than  the  value  of  the  part  taken,  will  constitute  the 
measure  of  compensation.1   Even  without  an  express  provision 

priated,  just  compensation  may,  perhaps,  depend  upon  the  effect  which  the 
appropriation  may  have  on  the  owner's  interest  in  the  remainder  to  in- 
crease or  diminish  its  value,  in  consequence  of  the  use  to  which  that  taken 
is  to  be  devoted,  or  in  consequence  of  the  condition  in  which  it  may  leave 
the  remainder  in  respect  to  convenience  of  use.  If,  for  instance,  a  public 
way  is  laid  out  through  a  tract  of  land  which  before  was  not  accessible,  and 
if,  in  consequence,  it  is  given  a  front,  or  two  fronts,  upon  the  street,  which 
furnish  valuable  and  marketable  sites  for  building  lots,  it  may  be  that  the 
value  of  that  which  remains  is  made,  in  consequence  of  taking  a  part,  vast- 
ly greater  than  the  whole  was  before,  and  that  the  owner  is  benefited 
instead  of  damnified  by  the  appropriation.  Indeed,  the  great  majority  of 
streets  in  cities  and  villages  are  dedicated  to  the  public  by  the  owners  of 
lands,  without  any  other  compensation,  or  expectation  of  compensation, 
than  the  increase  in  market  value  which  is  expected  to  be  given  to  such 
lands  thereby ;  and  this  is  very  often  the  case  with  land  for  other  public 
improvements  which  are  supposed  to  be  of  peculiar  value  to  the  locality  in 
which  they  are  made.  But  where,  on  the  other  hand,  a  railroad  is  laid  out 
across  a  man's  premises,  running  between  his  house  and  his  outbuildings, 
necessitating,  perhaps,  the  removal  of  some  of  them,  or  upon  such  a  grade 
as  to  render  deep  cuttings  or  high  embankments  necessary,  and  thereby 
greatly  increasing  the  inconveniences  attending  the  management  and  use 
of  the  land,  as  well  as  the  risks  of  accidental  injuries,  it  will  often  hap- 
pen that  the  pecuniary  loss  which  he  would  suffer  by  the  appropriation 
of  the  right  of  way  would  greatly  exceed  the  value  of  the  land  taken,  and 
to  pay  him  that  value  only  would  be  to  make  very  inadequate  compensa- 
tion : "     Cooley,  Const.  Lim.  5e>5.        ' 

1  See  Sater  v.  Plank  Road  Company,  1  Iowa,  393,  decided  under  the  con- 
stitution of  1846.  The  rule,  as  there  laid  down,  does  not  fully  accord  with 
that  stated  in  the  text,  since  it  requires  the  marketable  value  of  the  premi- 
ses proposed  to  be  taken  to  be  ascertained  irrespective  of  the  proposed  im- 
provement, and  does  not  distinguish  between  general  and  special  benefits. 
By  the  Iowa  constitution   of  1857,   benefits  are  excluded:    Deaton  v.  Polk 


CH.  XVI.J  EMINENT   DOMAIN.  473 

of  law  requiring  tthat  here  shall  be  no  reduction  for  benefits,  it 
seems  to  the  author  unjust  to  require  that  the  value  of  the  land 
shall  be  ascertained  irrespective  of  those  general  benefits  which 
are  common  to  all  land  in  the  vicinity,  and  which  arise  out  of 
the  proposed  improvement.  And  the  rule  held  by  some  courts, 
that  these  benefits  shall  be  excluded  in  ascertaining  the  value 
of  the  whole  land  in  the  first  instance,  and  then  allowing  to  be 
deducted  from  this  sum  the  value  of  the  remaining  portion 

County,  9  Iowa,  594;  Israel  v.  Jewett,  29  Iowa,  475;  Pennsylvania  rule  is  sim- 
ilar to  the  one  in  Sater  v.  Plank  Road  Company,  supra;  Watsons.  Railroad 
Company,  37  Pa.  St.  469;  Pennsylvania  Railroad  v.  Heister,  8  Pa.  St.  445; 
Hornstein  v.  Railroad,  51  Pa.  St.  87.  As  to  general  and  special  benefits:  Rail- 
road Company  v.  Collett,  6  Ohio  St.  182,  1856 ;  Railroad  Company  v.  Ball,  5 
Ohio  St,  568;  State  v.  Digby,  5  Blackf.  543 ;  Robbins  v.  Railroad  Company, 
6  Wis.  636;  Hornstein  v.  Railroad  Company,  51  Pa.  St.  87 ;  Woodfolk  v. 
Railroad  Company,  2  Swan,  422;  Mclntire  v.  State,  5  Blackf.  384;  Railroad 
Company  v.  Hunter,  8  Ind.  74;  Vanblaricum  v.  State,  7  Blackf.  209;  Mc- 
Mahon  v.  Railroad  Company,  5  Ind.  413 ;  Isom  v.  Railroad  Company,  36 
Miss.  300;  Pacific  Railroad  v.  Chrystal,  25  Mo.  544;  Newby  v.  Platte  County, 
25  Mo.  258;  Sutton  v.  Louisville,  5  Dana,  28;  Jacob  v.  Louisville,  9  Dana, 
114;  Arnold  v.  Bridge  Company,  1  Duvall  (Ky.),  372;  Robinson  v.  Robinson, 
ib.  162.  In  Mississippi,  even  incidental  benefits  cannot  be  set  off  against  inci- 
dental damages :  Railroad  Company  v.  Moye,  39  Miss.  374, 1860.  In  Georgia, 
benefits  are  excluded:  Savannah  v.  Hartridge,  37  Geo.  113,  1867. 

The  opinion  of  Ranney,  J.,  in  Giesy  v.  Railroad  Company,  4  Ohio  St.  308, 
1854,  contains  an  able  exposition  of  the  principles  on  which  damages  should 
be  assessed  under  the  constitution  of  Ohio,  which  contains  a  provision  that 
the  "  compensation  shall  be  assessed  by  a  jury,  without  deduction,  for  ben- 
efits to  any  property  of  the  owner.''  In  the  course  of  his  opinion  he  says : 
"Whether  property  is  appropriated  directly  by  the  public  or  through  the 
intervention  of  a  corporation,  the  owner  is  entitled  to  receive  its  fair  mar- 
ket value  at  the  time  it  is  taken — as  much  as  he  might  fairly  expect  to  be 
able  to  sell  it  to  others  for,  if  it  was  not  taken — and  this  amount  is  not  to 
be  increased  from  the  necessity  of  the  public  or  the  corporation  to  have  it, 
on  the  one  hand,  nor  diminished  from  any  necessity  of  the  owner  to  dis- 
pose of  it  on  the  other.  It  is  to  be  valued  precisely  as  it  would  be  ap- 
praised for  sale  upon  execution,  or  by  an  executor  or  guardian,  and  with- 
out any  regard  to  the  external  causes  that  may  have  contributed  to  make 
up  its  present  value.  The  jury  are  not  required  to  consider  how  much,  nor 
permitted  to  make  any  use  of  the  fact  that  it  may  have  been  increased  in 
value  by  the  proposal  or  construction  of  the  work  for  which  it  is  taken.  To 
allow  this  to  be  done  would  not  only  be  unjust,  but  would  effect  a  partial 
revival  of  the  very  abuse  which  it  was  a  leading  purpose  of  these  constitu- 
tional provisions  to  correct.  It  would  be  unjust,  because  it  establishes  for 
a  corporation  what  is  done  for  no  one  else,  a  sort  of  right  in  the  property 

60 


474  MUNICIPAL   CORPORATIONS.  [CH.  XVI. 

after  the  improvement  is  made,  is  still  more  indefensible,  and 
it  was  the  general  conviction  of  the  injustice  of  such  a  rule 
that  has  led  to  so  many  constitutional  provisions  and  legisla- 
tive enactments  prohibiting  the  land  owner  from  being  charged 
with  benefits.  But  for  benefits,  direct  and  special  to  him,  he 
should  be  charged  in  making  up  the  estimate  of  the  amount  to 
which  he  is  justly  entitled,  unless,  by  the  constitution  or  stat- 
ute, even  such  benefits  are  not  to  be  considered. 

of  others  to  the  reflected  benefits  of  its  improvement,  itself  submitting  to 
no  reciprocity  by  affording  others  a  compensation  for  the  effect  of  their 
improvements  upon  the  property  of  the  corporation.  And  it  is  doubly  un- 
just»  where,  as  must  very  often  happen,  the  increase  in  value  accrued  to 
the  benefit  of  a  former  owner,  and  has  been  bought  and  paid  for  by  the 
present  holder,  from  whom  the  property  is  taken  at  a  diminished  price." 
So,  in  the  Kailroad  Company  v.  Doughty,  2  Zabr.  495,  1850,  the  Supreme 
Court  of  New  Jersey  expresses  its  opinion  to  be,  that  in  estimating  the  value 
of  land  taken  for  the  purpose  of  a  public  improvement  the  present  value  of 
the  lands,  not  at  a  forced  sale,  but  at  a  sale  which  a  prudent  holder  would 
make  if  he  had  the  power  to  choose  his  own  time  and  terms,  is  to  be  given. 
In  the  case  of  Paul  v.  Newark,  at  the  Essex  (N.  J.)  Supreme  Court  circuit, 
Depue,  J.,  held,  that  a  house  wholly  within  the  lines  of  the  proposed  street  must 
(if  the  owner  so  wishes)  be  taken  and  paid  for  in  full  by  the  city,  and  the 
city  cannot  compel  him  to  move  it  by  merely  paying  costs  of  removal  and 
restoration,  even  although  the  owner  has  immediately  adjacent  land,  suffi- 
cient to  accommodate  the  house.  When  statutes  provide  for  taking 
"lands,"  the  word  is  used  in  its  broad  signification,  and  includes  all  things 
affixed  to  lands.  In  Meyer  r>.  Newark,  where  only  a  part  (about  one-half) 
of  a  house  was  within  the  lines  of  the  proposed  street,  the  question  was 
left  for  review  before  the  court  in  banc,  whether  the  city  was  compelled  to 
take"  the  whole,  or  merely  to  pay  for  the  damages  incident  to  the  destruc- 
tion of  the  half  of  the  house;  the  court,  however,  strongly  intimated,  that 
in  cases  where  the  house  was  not  entirely  destroyed,  it  was  only  necessary 
to  pay  damages  sufficient  to  compensate  the  owner,  and  the  whole  need 
not  be  taken  or  paid  for:  lb.  6  Am.  Law  Review,  576,  from  which  the 
above  is  extracted. 


CH.  XVII.]  DEDICATION.  475 


CHAPTER  XVII. 

Dedication. 

§  489.  This  chapter  will  treat  of  the  doctrine  of  the  dedica- 
tion of  property  to  public  uses,  so  far  as  relates  to  municipali- 
ties, under  the  following  arrangement :  — 

1.  Importance  of  the  Doctrine  of  Dedication — Sec.  490. 

2.  Statutory  and  Common  Law  Dedications — Sees.  491, 
492. 

3.  Common  Law  Dedication — Rationale  and  Requisites  — 
Sees.  493-495. 

4.  Extent  of  Dedication  as  Respects  the  Donor : — Sees. 
496,  497. 

5.  Who    May     Dedicate — Intent — How    Established — 
Sees.  498,  499. 

6.  Effect   of  Long   User  and  Acquiescence — Sees.  500- 
502. 

7.  Effect  of  Platting  and  Sale  of  Lots— Sees.  503,  504. 

8.  Acceptance  by  the  Public — "When  and  for  What  Pur- 
pose Necessary — Sec.  505. 

9.  Dedication  of  Public  Squares  and  Their  Uses — Sees. 
506-509. 

10.  Dedications  for  Other  Purposes — Sees.  510,  511. 

11.  Alienation  and  Change  of  Use — Sees.  512-514. 

12.  Reverter — Misuser — Remedy — Sec.  515. 

Importance  of  the  Doctrine  of  Dedication. 

§  490.  That  property  may  be  dedicated  to  public  use  is  a  well 
established  principle  of  the  common  law.  It  is  founded  in 
public  convenience,  and  has  been  sanctioned  by  the  experience 
of  ages.  Indeed,  without  such  a  principle,  it  would  be  diffi- 
cult, if  not  impracticable,  for  society,  in  a  state  of  advanced 
civilization,  to  enjoy  those  advantages  which  belong  to  its  con- 
dition, and  which  are  essential  to  its  accommodation.      The 


476  MUNICIPAL   CORPORATIONS.  [CH.  XVII. 

importance  of  this  principle  may  not  always  be  appreciated, 
but  we  are  in  a  great  degree  dependent  on  it  for  our  highways 
and  streets,  and  the  grounds  appropriated  as  places  of  amuse- 
ment or  of  public  business  which ,  are  found  in  all  our  towns, 
and  especially  in  our  populous  cities.1 

Statutory  and  Common  Law  Dedications. 

§  491.  Dedications  of  land  to  public  uses  are  divisible  into 
two  classes:  1.  Statutory  Dedications.  2.  Common  Law  Dedi- 
cations. Statutory  dedications  are  made,  and  it  has  been  de- 
cided can  be  made,  only  by  pursuing  substantially  the  course 
prescribed  by  the  particular  statute.  Thus,  if  the  statute  re- 
quires that  the  map  or  plat  describing  the  streets,  alleys  com- 
mons, or  other  public  grounds,  shall  be  acknowledged  before  it 
is  recorded,  an  acknowledgment  is  essential  to  a  valid  and  ef- 
fective dedication  under  the  statute.2     The  effect  of  a  dedication 

1  Per  McLean,  J.,  in  New  Orleans  v.  United  States,  10  Pet.  662,  712, 1836. 
Dedication  is  "the  act  of  devoting  or  giving  property  for  some  proper 

object,  and  in  such  a  manner  as  to  conclude  the  owner:"  Beardsley,  J.; 
Hunter  v.  Sandy  Hill,  6  Hill  (N.  Y.),  407,  411,  1844.  See  Dovaston  v.  Payne, 
2  Smith  Lead  Cas.  90,  and  notes,  for  a  general  view  of  the  law  of  dedication. 
There  is  an  excellent  view  of  the  subject  in  Angell  on  Highways,  Chap.  III. 
See,  also,  chapter  on  Eminent  Domain,  ante,  and  chapter  on  Streets,  post. 

2  Wisby  v.  Boute,  19  Ohio  St.  238;  Fulton  v.  Mehrenfeld,  8  Ohio  St,  440, 
1858 ;  questioning  the  grounds  of  prior  decision  of  Morris  v.  Bowers,  Wright, 
(Ohio),  750;  Williams  v.  The  Church,  1  Ohio  St.  478;  Winona  v.  Huff,  11 
Minn.  119,  1866;  Baker  v.  St.  Paul,  8  Minn.  491,  1863;  Schurmeier  v.  Pail- 
road  Company,  10  Minn.  82, 1865;  affirmed  in  Supreme  Court,  7  Wall.  272, 
1868;  State  v.  Hill,  10  Ind.  219,  1858;  Hays  v.  State,  8  ib.  425 ;  Noyes  v. 
Ward,  19  Conn.  250,  1848 ;  Des  Moines  v.  Hall,  24  Iowa,  234, 1868.  See  Pa- 
gan v.  McCoy  (requisites  of  acknowledgment),  29  Mo.  356,  1860.  If  the 
plat  as  recorded,  pursuant  to  a  statute  requiring  it,  contains  enough  to 
show  that  it  was  intended  by  the  owner  to  be  a  dedication  under  the  stat- 
ute, it  would  seem,  to  the  author,  to  be  right,  notwithstanding  a  defective 
acknowledgment,  or  the  like,  to  hold  the  proprietor  estopped  to  make  the 
objection  that  he  did  not  comply  with  the  statute. 

Authentication  of  town  plats  arid  maps,  nature  of  evidence  necessary,  &c, 
effect  of  unrecorded  map,  &c,  see  Commonwealth  v.  Allburger,  1  Whart. 
(Pa.)  469;  Biddle  v.  Shippen,  1  Dallas,  19;  Franey  v.  Miller,  1  Jones  (Pa.), 
435;  Commonwealth  v.  Wood,  10  Barr  (Pa.),  93;  Winona  v.  Huff,  11  Minn. 
119;  Pagan  v.  McCoy,  29  Mo.  356;  Chicago,  &c.  Railroad  Company  v.  Bank- 
er, 44  111.;  United  States  v.  Chicago,  7  How.  185. 


CH.  XVII.]      STATUTORY  AND  COMMON  LAW  DEDICATIONS.  477 

under  the  statute  is  often  declared.  Thus,  if  it  be  provided 
by  statute  that  the  map  or  plat,  "when  so  made  and  recorded, 
shall  be  deemed  to  be  a  sufficient  conveyance  to  vest  the  fee  in 
the  county  in  which  such  town  lies,"  this  dispenses  with  any 
assent  or  acceptance  on  the  part  of  the  public,  and  in  this  res- 
pect differs  from  a  common  law  dedication.1  It  differs,  also, 
in  the  mode  of  operation,  as  by  the  language  above  quoted  the 
estate  vests  in  the  public  by  conveyance  or  grant,  whereas,  at 
common  law,  a  dedication  to  public  uses  in  cases  where  there 
is  no  express  grant  to  a  grantee  upon  consideration,  operates 
by  way  of  &n-  estoppel  in  pais  of  the  owner,  rather  than  by  a 
grant  or  the  transfer  of  an  interest  in  the  land.2  It  should  be 
remarked,  however,  that  an  incomplete  or  defective  statutory 
dedication  will,  when  accepted  by  the  public,  or  when  rights  are 
acquired  under  it  by  third  persons,  operate  as  a  common  law 
dedication  by  the  owner.3 

1  Fulton  v.  Mehrenfeld,  8  Ohio  St.  440;  Brown  v.  Manning,  6  Ohio,  298, 
304,  1834;  Bakers*.  St.  Paul,  8  Minn.  491,  493,  note  remarks  of  Flandrau,  J.; 
Bagan  v.  McCoy,  29  Mo.  356;  Wisby  v.  Eoute,  19  Ohio  St.  238.  See  People 
v.  Jones,  6  Mich.  176. 

2  lb.  per  Swan,  J.,  8  Ohio  St.  p.  444,  supra;  Cincinnati  v.  White,  6  Pet. 
(TJ.  S.)  582;  Town  of  Paulet  v.  Clark,  9  Craneh,  202;  Hunter  v.  Trustees,  6 
Hill  (N.  Y.),  407;  Curtis  v.  Keesler,  14  Barb.  521;  Brown  v.  Manning,  6 
Ohio,  298,  303,  and  cases  cited;  Cincinnati  v.  Commissioners,  &c.  7  Ohio,  pt. 
1,  88 ;  lb.  217 ;  Schurmeier  v.  Railroad  Company,  10  Minn.  82,  104. 

3  8  Ohio  St.  440,  supra.  Equitable  owner  may  dedicate,  and  trustee  hold- 
ing the  mere  naked  legal  title  is  bound  to  respect  it :  Williams  v.  The 
Church,  &c.  1  Ohio  St.  478;  Baker  v.  St.  Paul,  8  Minn.  491 ;  Hannibal  v. 
Draper,  15  Mo.  638;  Eagan  v.  McCoy,  29  Mo.  356,  366,  1860;  Johnson  v. 
Scott,  11  Mich.  232 ;  Doe  v.  Attica,  7  Ind.  641 ,  1856 ;  Dover  v.  Fox,  9  B.  Mon. 
200;  Banks  v.  Ogden,  2  Wall.  57;  Sargent  v.  Bank,  4  McLean,  339;  12  How. 
371.  "The  authorities  show  that  dedications  have  been  established  in  ev- 
ery conceivable  way  by  which  the  intention  of  the  party  could  be  mani- 
fested:" Per  Breese,  J.  in  Waugh  v.  Leech,28  111.  488, 1862;  Alvord  v.  Ashley, 
17  111.  363;  Dunion  v.  People,  ib.  416.  Thus,  the  making  and  recording  of  a 
town  plat  is  evidence  of  the  highest  character  of  the  dedication  of  the  streets 
and  alleys  marked  upon  it:  lb. ;  Godfrey  v.  Alton,  12  111.  29;  Belleville  v. 
Stokey,  23  111.  441. 

Under  the  statutes  of  Kansas,  the  execution  and  recording  of  a  plat  of  a 
city  or  town,  conveys  to  the  county  the  fee  of  such  parcels  Of  land  as  are 
therein  expressed,  named,  or  intended,  for  public  use,  in  trust  and  for  the 
uses  therein  named,  expressed,  or  intended,  and  for  no  other  use  or  pur- 
pose, and  a  subsequent  conveyance  of  land  thus  dedicated  to  public  uses 


478  MUNICIPAL   CORPORATIONS.  [CH.  XVII. 

§  492.  Although  the  effect  of  a  statutory  dedication  may  be 
to  grant  the  fee  of  the  streets  to  the  corporation  in  trust  for  the 
public  uses,  yet,  unless  prohibited  by  statute,  the  proprietor,  in 
laying  out  a  town  or  addition,  may  grant  the  easement  simply,  and 
reserve  the  minerals  therein.1  But  such  proprietor  cannot  confer 
upon  a  county  or  extraneous  corporation  the  control  of  streets 
in  a  city,  and  thus  deprive  the  proper  municipal  corporation 
of  such  control  given  it  by  law.2 

Common  Law  Dedication  —  Rationale  and  Requisites. 

§  493.  As  to  common  law  dedications,  the  right  to  make 
which  is  not  usually  taken  away  or  abridged  by  statutory  regu- 
lations respecting  town  plats,  the  subject  may  be  advantageous- 
ly presented  by  referring  somewhat  in  detail  to  the  leading 
case  of  the  City  of  Cincinnati  v.  White,3  decided  by  the  Su- 
preme Court  of  the  United  States,  which  has  been  extensively 
followed  by  the  state  tribunals,  and  is  everywhere  recognized 

by  the  proprietor  of  the  city,  town,  or  addition,  to  the  county,  does  not  de- 
stroy the  trust  created  by  the  execution  and  recording  of  the  plat:  County 
Commissioners  v.  Lathrop,  Supreme  Court  of  Kansas,  1872,  not  yet  report- 
ed. Construction  of  Missouri  statute:  Price  v.  Thompson  (as  to  '"park"),  48 
Mo.  363 ;  Butherford  o.  Taylor  (rights  of  adjoining  owners),  38  Mo.  315. 

*  Dubuque  v.  Benson,  23  Iowa,  248,  1867.  See  Noyes  v.  Ward,  19  Conn. 
250, 1848;  Manley  v.  Gibson,  13  111.  312.  Words  on  the  plat,  "The  streets 
are  dedicated  for  street  purposes,  and  that  only,"  held  to  give  the  public  only 
an  easement,  and  that  subterraneous  mines  were  reserved:  23  Iowa,  248, 
mpra.    Dedicator  may  limit  duration :  Antones  v.  Eslava,  9  Port.  (Ala.)  527. 

'*  Des  Moines  v.  Hall,  24  Iowa,  234,  241,  1868.  In  this  last  case,  constru- 
ing the  Iowa  statute,  it  was  held  (Cole,  J.,  dissenting,)  that  the  laying  off  and 
recording  a  town  plat  or  an  addition  thereto,  under  the  code,  had  the  effect 
to  vest  in  the  corporation  the  fee  simple  title  to,  and  exclusive  right  of,  do- 
minion over  the  streets  and  alleys  thus  dedicated  to  the  public  use,  and  in 
such  case  the  original  proprietor  has  no  right  to  the  subterraneous  deposits  of 
coal  within  the  limits  of  such  streets,  and  the  corporation  may  maintain 
an  action  against  him  for  coal  mined  and  taken  by  him  from  beneath  the 
same :  26.  Under  the  statute  of  Minnesota,  it  is  held  that  under  a  statuto- 
ry dedication  the  fee  simple  to  land  dedicated  for  streets,  squares,  &c,  does 
not  pass,  but  only  such  an  estate  or  interest  as  the  purposes  of  the  trust  re- 
quire: Schurmeier  v.  Railroad  Company,  10  Minn.  104;  affirmed,  7  Wall. 
272. 

s  Cincinnati  v.  White,  6  Pet.  (U.  S.)  431,  1832.  See  Noyes  v.  Ward,  19 
Conn.  250;  Manley  v.  Gibson,  13  111,  312. 


CH.  XVII.]  COMMON    LAW   DEDICATION.  479 

as  a  sound  exposition  of  the  anomalous  doctrines  of  the  law 
respecting  the  rights  which  may  be  parted  with  by  the  owner 
and  acquired  by  the  public  in  this  peculiar  manner.  In  that 
case  it  appeared  that  in  1789  the  original  proprietors  of  Cin- 
cinnati designated,  on  the  plan  of  the  town,  the  land  between 
Front  street  and  the  Ohio  river  as  a  common,  for  the  use  and 
benefit  of  the  town  forever.  A  few  years  afterwards  a  claim 
was  set  up  to  this  common  by  a  person  who  had  procured  a 
deed  from  the  trustee  in  whom  the  fee  of  the  land  was  vested, 
and  who  had  entered  upon  the  common  and  claimed  the  right 
of  possession.  The  proof  of  dedication  (marking  on  the  plat 
accompanied  by  public  use)  being  made  out  to  the  satisfaction 
of  the  court,  they  sustained  the  rights  claimed  by  the  city.  At 
the  time  the  plan  was  adopted  by  the  proprietors,  and  this 
ground  was  marked  on  the  plat  as  a  common,  they  did  not,  in 
fact,  possess  the  equitable  (or  legal)  title  to  the  space  dedica- 
ted; but  they  shortly  afterwards  purchased  the  equitable  title; 
and  it  was  held  (their  assent  to  the  dedication  continuing)  that 
under  the  purchase  the  prior  dedication  was  good.1 

§  494.  In  its  opinion  in  the  case  just  mentioned,  the  Su- 
preme Court  assert  or  assent  to  the  correctness  of  the  follow- 
ing principles:  1.  That  it  is  not  essential  to  a  dedication  that 
the  legal  title  should  pass  from  the  owner.2  2.  Nor  is  it  es- 
sential that  there  should  be  any  grantee  of  the  use  or  easement 
m  esse  to  take  the  fee,  such  cases  being  exceptions  to  the  gen- 
eral rule  requiring  a  grantee.3    3.  Nor  is  a  deed  or  writing 

1  Per  McLean,  J.,  in  New  Orleans  v.  United  States,  10  Pet.  713. 

s  Lade  v.  Shepherd,  2  Stra.  1004;  Beatty  v.  Kurts  (dedication  of  lot  on 
plan  "for  the  Lutheran  Church"),  2  Pet.  (U.  S.)  256;  New  Orleans  v.  United 
States,  10  Pet.  662;  Dubuque  v.  Maloney,  9  Iowa,  450;  Kelsey  v.  King,  33 
How.  Pr.  39. 

3  Town  of  Paulet  v.  Clark,  9  Cranch  (U.  S.),  292;  New  Orleans  v.  United 
States,  10  Pet.  661,  713,  1836,  where  McLean,  J.,  says:  "It  is  not  essential 
that  this  right  of  use  should  be  vested  in  a  corporate  body ;  it  may  exist  in 
the  public,  and  have  no  other  limitation  than  the  wants  of  the  community 
at  large.''  See,  also,  McConnell  v.  Lexington,  12  Wheat.  582 ;  Doe  v.  Jones, 
11  Ala.  63,  1847;  Vick  v.  Vicksburg,  1  How.  (Miss.)  379,  1837;  Antones  v. 
Eslava,  9  Port.  (Ala.)  527;  Winona  v.  Huff,  11  Minn.  119, 1866.  Dedications 
to  the  public  of  streets,  commons,  Ac,  may,  on  the  corporation  being  erected, 
pass  to  it  by  operation  of  law :  Mayor  of  Savannah  v.  Steamboat  Company,  R. 


480  MUNICIPAL   CORPORATIONS.  [CH.  XVII. 

necessary  to  constitute  a  valid  dedication,;  it  may  be  by  parol.1 
4.  No  specific  length  of  possession  is  necessary  to  constitute  a 
valid  dedication ;  all  that  is  required  is  the  assent  of  the  owner 
of  the  soil  to  the  public  use,  and  the  actual  enjoyment  by  the 
public  of  the  use  for  such  a  length  of  time  that  the  public 
accommodation  and  private  rights  would  be  materially  affected 
by  a  denial  or  interruption  of  the  enjoyment.2 

§  495.  Conformably  to  the  foregoing  principles,  a  proposal 
by  a  land  owner  to  give,  free  of  charge,  and  upon  certain  con- 
ditions to  be  performed  by  the  city,  so  much  of  his  land  as 
may  be  required  to  open  or  widen  a  street  or  highway,  will,  if 
the  proposition  be  accepted,  and  the  conditions  complied  with, 
in  a  reasonable  time,  estop  such  owner  from  claiming  damages 
for  his  land;  a  formal  vote  of  acceptance  is  not  necessary;  and 

M.  Charlt.  (Geo.)  R.  342,  1830;  Doe  v.  Jones,  11  Ala.  63;  Klinkener  a.  School 
District,  1  Jones  (Pa.),  444;  Pella  v.  Scholte,  24  Iowa,  283,  293;  Canal  Trus- 
tees v.  Havens,  11  111.  554;  Waugh  v.  Leech,  28  111.  488.  If  no  donee  or 
trustee  be  named  the  dedication  is  valid,  and  the  legislature,  as  well  as 
chancery,  may  directly  appoint  trustees  who  may  recover  in  ejectment: 
Bryant  v.  McCandless,  7  Ohio,  pt.  2,  135. 

1  Barclay  v.  Howell's  Lessee,  6  Pet.  (TJ.  S.)  498;  Keen  v.  Lynch,  1  Rob. 
(Va.)  186,  1842;  Dummer  v.  Jersey  City,  1  Spencer  (N.  J.),  86,  1843;  Vick  v. 
Vicksburg,  1  How.  (Miss.)  379, 1837;  State  v.  Catlin,  3  Vt.  530;  McKee  v. 
St.  Louis,  17  Mo.  184,  1852;  Hunter  v.  Sandy  Hill,  6  Hill  (N.  Y.),  407;  Post 
v.  Pearsall,  22  Wend.  425,  454;  Dover  v.  Fox,  9  B.  Mon.  200;  Macon  v. 
Franklin,  12  Geo.  239.  A  party  taking  under  a  partition  in  which  streets  were 
dedicated  is  estopped  to  deny  dedication :    Wisby  v.  Boute,  19  Ohio  St.  238. 

1  Jarvis  v.  Dean,  3  Bing.  447 ;  State  v.  Catlin,  3  Vt.  530 ;  Barclay  v.  How- 
ell's Lessee,  6  Pet.  (TJ.  S.)  498, 1832;  Saulet  v.  New  Orleans  (Square),  10  La. 
An.  81,  1855,  per  Ogden,  J.;  Noyes  v.  Ward,  19  Conn.  250,  268,  1848;  2 
Greenl.  Ev.  Sec.  662;  Denning  v.  Roome,  6  Wend.  651;  State  v.  Marble,  4 
Ire.  (Law)  318. 

Lands,  "  after  being  set  apart  for  public  use,  and  enjoyed  as  such,  and 
private  and  individual  rights  acquired  with  reference  to  it,  the  law  consid- 
ers it  in  the  nature  of  an  estoppel  in  pais,  which  precludes  the  orignal  owner 
from  revoking  such  dedication : "  Per  Thompson,  J.  in  Cincinnati  v.  White, 
6  Pet.  431,  437,  1832.  As  to  irrevocability  of  dedication,  after  other  rights  have 
attached,  see  Macon  v.  Franklin,  12  Geo.  239,  1852;  Hay nes  v.  Thomas,  7 
Ind.  38;  Indianapolis  v.  Cross,  ib.  9, 12;  Ragan  v.  McCoy,  29  Mo.  356;  State 
v.  Catlin,  3  Vt.  530;  Weisbrod  v.  Railroad  Company,  18  Wis.  35;  Common- 
wealth v.  Alburger,  1  Whart.  (Pa.)  469;  Lee  v.  Lake,  14  Mich.  12. 


OH.  XVII.J     EXTENT  OE  DEDICATION  AS  RESPECTS  DOWER.  481 

seasonably  fulfilling  the  conditions  of  the  offer  is  sufficient.1 
But  unless  private  rights  have  attached  a  common  law  dedica- 
tion of  land  for  a  highway,  street,  or  other  public  use,  may, 
according  to  some  authorities,  be  revoked  by  the  owner  at  any 
time  before  there  has  been  an  acceptance  by  formal  act  of  the 
proper  authorities,  or  by  user,  as  hereinafter  explained,  but  not 
afterwards.2  And  a  municipal  corporation  which  has  accepted 
a  dedication  of  property  to  public  use  may,  before  vested  rights 
have  been  acquired  under  the  dedication,  with  the  consent  of 
the  dedicator,  revoke  the  acceptance.3 

Extent  of  Dedication  as  Respects  Dower. 

§  496.  "Where  land  is  dedicated  by  the  proprietor  "for  the 
use  of  tbe  public,"  this  has  been  considered  to  show,  in  the 
absence  of  statute  to  the  contrary,  an  intention  to  give  a  mere 
easement,  and  not  the  fee.  In  such  case  the  owner  of  the  land, 
whether  dedicated  for  the  use  of  a  highway,  or  street,  or  square, 
or  common,  retains  his  exclusive  right  in  the  soil  for  every  pur- 
pose of  use  or  profit,  not  inconsistent  with  the  public  easement, 
and  may  maintain  appropriate  actions  for  any  encroachment 
upon  it.4 

1  Crockett  v.  Boston,  5  Cush.  182,  1849.  Sixteen  months  considering  the 
matter  to  be  acted  upon,  and  the  usual  course  of  proceeding,  was  not  con- 
sidered an  unreasonable  time :  lb. 

»  Holdane  v.  Cold  Springs,  21  N.  Y.  474,  1860;  Baldwin  v.  Buffalo,  35  N. 
Y.  375 ;  S.  C.  29  Barb.  396.  But  see  Jersey  City  v.  Morris  Canal  Company, 
1  Beasl.  (N.  J.)  547,  1849;  Weisbrod  v.  Railroad  Company,  18  Wis.  35;  Lee 
v.  Sandy  Hill,  40  N.  Y.  442,  1869.  Completed  dedication  by  map  held  not 
revocable,  although  not  accepted:  M.  E.  Church  v.  Hoboken,  33  N.  J.  (Law) 
13,  1868;  Cook  v.  Burlington,  30  Iowa,  94,  1870.  So,  in  California,  an  accept- 
ance by  the  public,  by  a  formal  act  or  by  actual  user,  is  not  necessary  to 
complete  a  dedication  where  the  intent  to  dedicate  is  made  out :  Stone  v. 
Brooks,  35  Cal.  489,  1868. 

As  to  dedication  and  revocation  of  dedication  of  a  strip  of  land  which 
was  a  mere  cut  de  sac,  see  Holdane  v.  Cold  Spring,  21  N.  Y.  474,  1860;  S.  C. 
23  Barb.  103;  Tillman  v.  People,  12  Mich.  401 ;  People  v.  Jackson,  7  Mich. 
432;  Stone  v.  Brooks,  35  Cal.  489,  1868. 

3  Municipality  v.  Levee  Company,  7  La.  An.  270,  1852. 

*  Lade  v.  Shepard,  2  Stra.  1004;  adhered  to  in  the  receat  case  of  the  Par- 
ish, &c.  v.  Jacobs,  25  Law  T.  Rep.  (N.  S.)  800.  See,  also,  Goodtitle  v.  Alker, 
1  Burr.  153;  Harrison  v.  Parker,  6  East,  154;  Jackson  v.  Hathaway,  15 
Johns.  447;  Perley  v.  Chandler,  6  Mass.  454;  Pomeroy  v.  Mills,  3  Vt.  279, 
61 


482  MUNICIPAL   CORPORATIONS.  [CH.  XVII. 

§  497.  If  land  dedicated  to  a  city  for  public  use  is  bounded 
by  a  river,  the  city  has  all  the  rights  and  privileges  of  a  riparian 
proprietor  as  respects  alluvial  formations  or  additions;  these 
partake  of  the  same  character  and  are  subject  to  the  same  use 
as  the  soil  to  which  they  become  united.1     Where  the  shore 

1831;  Abbot  v.  Mills,  ib.  521;  Des  Moines  v.  Hall,  24  Iowa,  234;  Dubuque  v. 
Maloney,  9  Iowa,  450,  1859;  Boston  v.  Richardson,  13  Allen,  152,  153; 
White  J).  Godfrey,  97  Mass.  472;  Bliss  v.  Bull,  99  Mass.  597.  As  respects 
streets,  some  explanation  of  the  doctrine  as  stated  in  the  text,  if  not  limita- 
tions upon  it,  are  suggested  in  the  chapter  on  Streets.  Note  remarks  of 
McLean,  J.,  in  Barclay  v.  Howell,  6  Pet.  512. 

It  has  been  definitely  settled  by  the  Court  of  Appeals  in  New  York, 
whatever  may  have  been  the  intimations  or  decisions  in  the  prior  cases, 
that  as  between  grantor  and  grantee  the  conveyance  of  a  lot  bounded  upon 
a  street  in  a  city,  carries,  in  the  absence  of  legislative  provision  to  the  con- 
trary, the  land  to  the  center  of  the  street,  there  being  no  distinction  in  this 
respect  between  the  streets  of  a  city  and  country  highways.  And  the 
grantee  goes  to  the  middle  of  the  street,  though  the  conveyance  contains 
no  reference  to  the  street,  and  the  depth  of  the  lot  was  stated  by  figures, 
which  would  not  include  any  part  of  the  street:  Bissell  v.  The  New  York, 
&c.  Railroad  Company,  23  N.  Y.  61,  1861,  five  judges  concurring,  three 
others  expressing  no  opinion ;  Hammond  v.  McLachlan,  1  Sandf.  323,  and 
Stites  v.  Curtis,  4  Day  (Conn.),  328,  approved.  The  case  of  Bissell  v.  Rail- 
road Company,  supra,  approved  and  followed  in  Wager  v.  Troy,  &c.  Rail- 
road Company,  25  N.  Y.  526, 1862,  and  note  remark  on  p.  533,  as  to  fee  of 
streets  in  city  of  New  York ;  S.  P.  Sherman  v.  McKeon,  38  N.  Y.  266, 1868. 
See,  also,  Willoughby  v.  Jenks,  20  Wend.  96,  1838.  Actual  possession  of 
lot  shows  constructive  title  of  occupant  to  middle  of  street:  Ib. ;  John  and 
Cherry  Streets,  19  Wend.  659;  Railroad  Company  v.  Elevator  Company,  50 
Pa.  St.  499;  Woodruffs  Neal,  28  Conn.  168,  1859.  Effect  of  fee  being  in 
city  corporation :  People  v.  Kerr,  27  N.  Y.  188 ;  Clinton  v.  Railroad  Compa- 
ny, 24  Iowa,  455.    See  Chap.  XVIII.  on  Streets,  post. 

Notwithstanding  a  dedication  under  a  statute  may  pass  the  fee  to  the 
streets  and  alleys,  yet  if  these  are  dedicated  by  a  different  mode  than  that 
prescribed  by  the  statute,  the  fee  remains  in  the  adjacent  proprietor  as  at 
common  law,  subject  to  the  public  easement:  Manly  v.  Gibson,  13  111. 
312;  Dubuque  v.  Benson,. 23  Iowa,  248. 

1  :New  Orleans  v.  United  States,  10  Pet.  (U.  S.)  661,  1836 ;  Cook  v.  Burling- 
ton, 30  Iowa,  94, 1870 ;  Godfrey  v.  Alton,  12  111.  29, 1850 ;  Newport  v.  Taylor, 
16  B.  Mon.  699, 1855.  Ante,  p.  120,  Sec.  73.  Dedication  of  streets  bordering 
on  navigable  water,  extends,  if  there  be  no  limitation,  to  the  water,  and,  in 
Alabama,  to  low  water  mark,  and  accretions  belong  to  the  public:  Doe  v. 
Jones,  11  Ala.  63, 1847.  The  Supreme  Court  of  the  United  States  has  de- 
cided that  the  title  to  lands  bordering  on  navigable  streams,  when  derived 
from  the  general  government,  "  stops  at  the  stream : "  Railroad  Company  v. 
Schurineir,  7  Wall.  272,  289, 1868.    At  the  "  margin  of  the  stream : "    Yates 


ch.  xvii.J  who  May  dedicate.  483 

owner,  through  whose  lands  a  street  comes  to  the  shore,  fills 
in  in  front  of  his  lands,  and  also  in  front  of  the  terminus  of  the 
street,  the  public  is  entitled  to  the  extension  of  the  street  the 
same  as  if  the  land  filled  in  were  an  alluvion.1 

Who  May  Dedicate.  —  Intent.  —  How  Established. 

§  498.  The  dedication  must  be  by  the  owner  of  the  land,  or  of 
an  estate  therein.2  A  municipal  corporation  may,  unless  re- 
stricted, dedicate  to  public  use  land  of  which  it  is  the  proprie- 
tor.3 Accordingly,  if  a  town  or  city  owning  land  in  fee,  suffer 
it  to  remain  unenclosed,  place  a  survey  of  the  same  on  record, 
describing  it  as  the  "town  common,"  and  then  permit  an  unin- 
terrupted use  of  it  by  the  public  for  a  series  of  years,  this  will 
amount  to  an  irrevocable  dedication  of  the  land  to  the  public,  and 

v.  Milwaukee,  10  Wall.  497,  504,  1870,  per  Miller,  J.  This  last  case  refers  to 
and  comments  on  Yates  v.  Judd,  18  Wis.  118.  See  Wharves,  ante,  Chap. 
VI.  p.  117 ;  also,  Chap.  XV.  on  Corporate  Property,  ante. 

1  Jersey  City  v.  Morris  Canal  Company,  1  Beasl.  (N.  J.)  547,  558,  per 
Whelpley,  J.  See,  also,  People  v.  Lambier,  5  Denio,  9,  1847 ;  Henshaw  v. 
Hunting,  1  Gray,  203;  Cook  v.  Burlington,  30  Iowa,  94, 1870.  Dedication 
of  streets,  &c,  under  tide  water:  Morris  Canal  Company  v.  Jersey  City,  1 
Beasl.  (N.  J.)  252;  S.  C.  on  appeal,  ib.  547;  Jersey  City  ».  Dummer,  Spenc. 
(N.  J.)  106;  Henshaw  v.  Hunting,  1  Gray  (Mass.),  203. 

8  Hoole  v.  Attorney  General,  22  Ala.  190 ;  Irwin  v.  Dixion,  9  How.  10 ; 
Lee  v.  Lak  ;  14  Mich.  12 ;  Leland  v.  Portland,  2  Oregon,  46.  Remainder  man 
not  bound  by  acts  of  the  owner  of  a  particular  estate  unless  his  assent  can 
be  shown  or  implied:  2  Smith  Lead.  Cas.  95.  By  agent  of  owner:  United 
States  v.  Chicago,  7  How.  (TJ.  S.)  185;  Barclay  v.  Howell's  Lessee,  6  Pet.  498. 
An  agent  laid  out  a  town  plat  with  "public  square;"  the  proprietors  denied 
his  authority — but  it  was  held,  that  having  conveyed  property  by  adopting 
his  numbers,  referring  to  the  "  recorded  town  plat,"  and  " public  square," 
his  act  was  ratified,  and  these  facts  were  sufficient  proof  of  his  authority : 
Brown  v.  Manning,  6  Ohio,  298,  1834.  By  administrator:  Logansport  v. 
Dunn,.  8  Ind.  378,  1856.  Presumption  from  long  use  by  public  against  mar- 
ried woman:  Schenley  v.  Commonwealth,  36  Pa.  St.  29.  Dedication  by  mar- 
ried woman:  Todd  v.  Railroad  Company,  19  Ohio  St.  514.  Widow  not  dow- 
able  in  property  dedicated  to  public  uses:  Gwynne  v.  Cincinnati  (bill  for 
dower  in  market  house),  3  Ohio,  25, 1827 ;  Moore  v.  Mayor,  &c.  of  New  York, 
8  N.  Y.  110,  1853.    Ante,  Sec.  459. 

3  Boston  v.  Lecraw,  17  How.  (TJ.  S.)  426;  State  v.  Woodward,  23  Vt.  92, 
1850;  Wright  D.  Victoria,  4  Texas,  375;  Macon  v.  Franklin,  12  Geo.  239. 
Corporation  may  dedicate :  Canal  Company  v.  Hall,  1  M.  &  Gr.  393 ;  Green 
v.  Canaan,  29  Conn.  157;  San  Francisco  v.  Calderwood,  31  Cal,  585, 


484  MUNICIPAL   CORPOKATIONS.  [CH.  XVII. 

the  subsequent  grantee  of  the  corporation  would  obtain  no  title.1 
But  if  a  title  in  fee  to  a  piece  of  land  be  in  the  municipal  cor- 
poration, although  it  was  purchased  by  it  for  a  market,  and 
constantly  used  for  that  purpose  for  forty  years,  the  land  is  not 
thereby  dedicated  for  market  purposes,  but  the  market  may  be 
changed  or  abandoned,  and  the  tax  payers  or  others  cannot 
object,  since  the  power  to  establish  and  regulate  markets  is  a 
continuing  one,  and  the  land  thus  used  for  market  purposes 
may  be  sold  by  the  corporation.2 

§  499.  An  intent  on  the  part  of  the  owner  to  dedicate  is  abso- 
lutely essential,  and  unless  such  intention  can  be  found  in  the 
facts  and  circumstances  of  the  particular  case,  no  dedication 
exists.  Where  a  plat  is  made  and  recorded  the  requisite  in- 
tention is  generally  indisputable.  But  the  intention  may  also 
be  established  by  parol  evidence  of  acts  or  declarations  which 
show  an  assent  on  the  part  of  the  owner  of  tne  land  that  the 
land  should  be  used  for  public  purposes.  To  deprive  the  pro- 
prietor of  his  land,  the  intent  to  dedicate  should  clearly  or  sat- 
isfactorily appear.3 

I  State  v.  Woodward  (indictment  for  enclosii.    public  common),  supra. 

"  Gall  v.  Cincinnati,  18  Ohio  St.  563,  1869.  See,  also,  Boston  v.  Lecraw,  17 
How.  (U.  S.)  426,  1854,  cited  ante,  p.  121,  note  1. 

II  Irwin  v.  Dixion,  9  How.  10;  The  President,  &c  v.  Indianapolis,  12  Ind. 
620, 1839;  Logansport  v.  Dunn,  8  Ind,  378;  Pennington  v.  Willard,  1  Rh  Is. 
93;  Westfall  v.  Hunter,  8  Ind.  174;  Cincinnati  v.  White,  6  Pet.  435;  Wilson 
v.  Sexon,  27  Iowa,  15;  Onstott  v  Murray,  22  Iowa,  466;  Manderschid  v.  Du- 
buque, 29  Iowa,  73.  , 

"The  doctrine  of  all  the  authorities  is,  that  the  intention  to  dedicate  land 
to  the  public  use  is  of  the  very  essence  of  the  act;  but  this  intention  may 
be  proved  as  a  fact  or  inferred  from  circumstances:"  Per  Potts,  J.,  Smith  v. 
State,  3  Zabr  (N.J.)  712,  725;  Lee  v.  Lake,  14  Mich.  12;  Stuy  vesant  v. 
Woodruff,  1  ib.  145;  Mayo  v.  Murchie,  3  Munf.  (Va.)  358,  1811.  Maybe 
shown  by  acts  in  pais:  Town  Council  v.  Lithgoe,  7  Rich.  (Law)  435;  Angell 
on  Highways,  Sec.  132. 

Proof  of  dedication  and  acts  which  will  estop  original  proprietor  or  his 
grantee,  with  notice,  from  resuming  the  lands  set  apart  to  the  public,  con- 
sult Commonwealth  v.  Alburger,  1  Whart.  (Pa )  469;  State  v  Wilkinson,  2 
Vt.  480;  Abbott  v.  Mills,  3  ib.  521;  Pomeroy  v.  Mills,  ib.  279;  State  v.  Catlin, 
ib.  530;  States.  Woodward,  23  ib.  92.  Declarations  of  owner  of  soil  admissi- 
ble to  show  a  dedication  to  public  use:  State  v.  Catlin,  3  Vt.  530,  1831 ;  Mc- 
Kee  v.  St.  Louis,  17  Mo.  184.  Declarations  of  deceased  surveyor,  at  the  time 
of  making  survey,  were  admitted  as  part  of  the  res  gestse:  Barclay  v.  How- 


OH.  XVII.]     EFFECT    OF   LONG   USER    AND   ACQUIESCENCE.  485 

Effect  of  Long  User  and  Acquiescence. 

§  500.  But  such  intent  will  be  presumed  against  the  owner 
where  it  appears  that  the  easement  in  the  street  or  property 
has  been  used  and  enjoyed,  by  the  public  for  a  period  corresponding 
with  the  statutory  limitation  of  real  actions.  But  where  there 
is  no  other  evidence  against  the  owner  to  support  the  dedica- 
tion but  the  mere  fact  of  such  user,1  so  that  the  right  claimed 

ell's  Lessee,  6  Pet.  498 ;  referred  to  by  McLean,  J.,  10  Pet.  714 ;  Birmingham 
v.  Anderson,  40  Pa.  St.  506.  Where  the  owner  is  interested  to  prove  a  ded- 
ication, he  will  be  held  to  strict  proof:  Eector  v.  Hartt,  8  Mo  448. 

Where  the  dedication  is  specific  and  certain,  as,  for  example,  the  words, 
"public  ground,"  or  "public  square,"  on  the  recorded  plat,  parol  testimony  is 
not  receivable  to  establish  or  affect  the  intention  of  the  donors,  and,  there- 
fore, in  such  a  case,  the  donors  cannot  show,  by  evidence  aliunde,  that 
they  designed  the  square  for  a  court  house,  and  if  no  court  house  should  be 
erected,  then  to  resume  it,  or  appropriate  it  to  a  seminary  of  learning: 
Brown  v.  Manning,  6  Ohio,  298,  1834.  Contra,  Westfall  v.  Hunt,  8  Ind.  174, 
but  qusere,  as  to  competency  of  the  parol  evidence  to  show  the  intent.  See 
Indianapolis  v.  Croas,  7  Ind.  9 ;  Cincinnati  v.  Hamilton  County,  7  Ohio,  part 
1,  88,  dedication  "for public  uses," — contest  between  city  and  county;  Leb- 
anon v.  Commissioners  ("public  ground"  contest  as  to  square  between 
town  and  county),  9  Ohio,  80.  See  Darlington  v.  Commonwealth,  41  Pa.  St. 
63. 

1  Remington  v.  Willard,  1  Rh.  Is.  93,  1847;  Thayer  v  Boston,  19  Pick. 
511,  1837;  Talbott-B.  Grace,  30  Ind.  389,  1868;  Keyes  v.  Tait,  19  Iowa,  123; 
Green  v.  Oaks,  17  111  249;  Smith  v.  State,  3  Zabr.  130;  affirmed,*  712; 
Onstott  v.  Murray,  22  Iowa,  457, 1867,  where  conflict  in  the  cases  is  noticed, 
and  where  it  is  held,  that  if  the  public,  with  the  knowledge  of  the  owner 
of  the  land,  even  though  it  be  unenclosed  prairie  or  timber  land,  has 
claimed  and  exercised  the  right  of  using  the  same  for  a  public  highway  for 
a  period  equal  to  that  fixed  by  the  statute  limiting  real  actions,  the  public 
right  is  complete,  unless  such  use  be  by  favor  or  leave  of  the  owner.  Man- 
dershid  v.  Dubuque,  29  Iowa,  73.  In  Pennsylvania,  the  Supreme  Court 
holds  the  law  to  be,  "that  the  use  of  ground  by  the  public  as  a  highway  for 
more  than  twenty-one  years  makes  it  a  public  road  just  as  effectually  as 
though  it  had  originally  been  laid  out  and  opened  by  the  proper  authori-' 
ties:"  Per  Knox  J.,  Commonwealth  v.  Cole,  26  Pa,  St.  187,  1856;  Thayer  v. 
Boston,  19  Pick.  511,  514,  per  Shaw,  C.  J.  And  the  same  principle  is  adopt- 
ed as  to  sidewalks  and  streets:  Bush  v.  Johnston,  23  Pa.  St.  209, 1854.  It  is 
held  in  Massachusetts  that  a  town  way  can  only  be  established  in  the  mode 
prescribed  by  statute ;  though  a  town  may  acquire  a  right  of  way  by  grant 
or  user,  it  will  be  a  private  way,  and  obstructions  to  it  not  indictable: 
Commonwealth  v.  Low,  3  Pick.  408,  1826.  But  see  Commonwealth  v.  Bel- 
den,  13  Met.  10, 1847;  State  v.  Bradbury,  40  Maine,  154, 1855;  State  v.  Wil- 
son, 42  Maine,  9,  1856. 


486  MUNICIPAL   CORPORATIONS.  [CH.  XVII. 

by  the  public  is  purely  prescriptive,  it  is  essential  to  maintain 
it,  that  the  user  or  enjoyment  should  be  adverse,  that  it  is  with 
claim  of  right,  and  uninterrupted  and  exclusive  for  the  requi- 
site length  of  time ;  but  when  it  is  said  that  it  must  be  unin- 
terrupted, thi?  refers  to  the  right,  and  not  simply  to  an  inter- 
ruption, of  the  use} 

§  501.  But  where  the  question  is  as  to  an  intent  on  the  part 
of  the  owner  to  dedicate,  user  by  the  public  for  a  period  less  than 
that  limiting  real  actions,  is  important  as  evidence  of  such  in- 
tention, and  as  one  of  the  facts  from  which  it  may  be  inferred. 
Where  the  animus  dedicandi  is  established,  no  user  for  any  defi- 
nite period  by  the  public  is  necessary.2  "No  particular  time," 
says  an  English  judge,  "is  necessary  for  evidence  of  a  dedicar- 
tion.  If  the  act  of  dedication  be  unequivocal,  it  may  take 
place  immediately.  For  instance,  if  a  man  build  a  double  row 
of  houses  opening  into  an  ancient  street  at  each  end,  making 
a  street,  and  sells  or  lets  the  houses,  that  is  instantly  a  high- 
way." 3 

§  502.  A.  street  may  be  widened  by  the  dedication  of  a  strip 
of  land  adjoining  it,  and  such  dedication  may  be  shown  by 
long  use  by  the  public,  and  acquiescence  in  such  use  by  the 
owner.     And  if  a  street  has  been  long  used  and  ■  built  upon  to 

1  2  Greenl.  Ev.  Tit  Prescription,  Sees.  537-546. 

2  Hoole».  Attorney  General,  22  Ala.  190;  Boyer  v.  State,  16  Ind.  451; 
Evansville  v.  Paige,  23  Ind.  525;  Cincinnati  v.  White,  6  Pet.  431;  Barclays. 
Howell,  6  Pet  498;  Irwin  v.  Dixion,  9  How.  10;  State  v.  Wilkinson,  2  Vt. 
480;  Hunters.  Sandy  Hill,  6  Hill,  407.  Proof  by  user:  See  Gamble  v  St. 
Louis,  J2  Mo.  617;  Lewis  v.  San  Antonio,  7  Texas,  288;  New  Orleans  v. 
United  States,  10  Pet.  661;  722;  Weisbrod  v.  Railroad  Company,  18  Wis.  35; 
Doe  v.  Jones,  11  Ala.  63,  1847;  2  Smith  Lead.  Cas.  95;  Onstott  v.  Murray,  22 
Iowa,  457;  Pella  v.  Scholte,  24  Iowa,  283;  Sanlet  v.  New  Orleans,  10  La.  An. 
.81. 

What  acts  will  repel  presumption  of  dedication  arising  from  owner's  know- 
ledge of  the  use  by  the  public :  Durgin  v.  Lowell,  3  Allen,  398 ;  Skeen  v.  Lynch, 
1  Rob.  (Va  )  186,  194;  Roberts  v.  Karr,  1  Campb.  262,  note;  lb  263,  note; 
Schoomaker  *>.  Church,  5  How.  Pr.  265;  2  Smith  Lead.  Cas.  176.  Upon 
the  question  of  dedication,  non-user  is  important,  but  not  conclusive,  evi- 
dence against  the  public;  Barclay  v.  Howell's  Lessee,  6  Pet.  498.  Effect  of 
occupancy  by  alleged  dedicator:  Cook  v.  Hillsdale,  7  Mich.  115,  1859. 

3  Woodyer  v,  Hadden,  5  Taunt.  125,  per  Chambre,  J. ;  2  Smith  Lead.  Cas. 
176. 


CH.  XVII. J       EFFECT    OF    PLATTING   AND   SALE    OF   LOTS.  487 

a  particular  line,  which  line  has  been  acquiesced  in  by  the  ad- 
joining owners,  who  have  built  and  made  improvements  to 
correspond  with  such  line,  such  owners  and  the  public  acquire 
rights  in  consequence,  and  one  or  more  of  such  owners  cannot 
afterwards  change  or  narrow  the  street  by  showing  that  the 
original  survey  made  the  line  of  the  street  different  from  that 
which  had  been  long  regarded,  built  upon  and  acquiesced  in 
as  the  line  of  the  street.1 

Effect  of  Platting  and  Sale  of  Lots. 

§  503.  "WTiile  a  mere  survey  of  land,  by  the  owner,  into 
lots,  defining  streets,  squares,  &c,  will  not,  without  a  sale, 
amount  to  a  dedication,2  yet  a  a  sale  of  lots  with  reference  to  such 
plat,  or  describing  lots  as  bounded  by  streets,  will  amount  to 
an  immediate  and  irrevocable  dedication  of  the  latter,  binding 
upon  both  vendor  and  vendee.3 

1  Smith  v.  State,  3  Zabr.  (IS.  J.)  712,  1852;  affirming,  S.  C.  ib.  130.  In  this 
case  the  different  owners  had  acquiesced  in  the  line  built  upon,  and  treated 
it  as  the  true  line  for  forty  or  fifty  years.  The  defendant,  disregarding  this 
line,  built  out  into  the  street  some  four  or  five  feet.  He  was  indicted  for 
the  nuisance  thus  created,  and  convicted,  the  court  holding  the  rights  of 
the  public  had  attached,  and  that  it  was  no  defence  to  show  that  the  build- 
ing erected  was  on  the  line  of  the  street  as  originally  surveyed  A  road 
or  street  which  becomes  a  public  highway  by  user  is  of  no  established 
width  by  law;  its  width,  as  used  at  the  time  when  the  rights  of  the  public 
become  complete,  is  the  established  or  legal  width  of  the  highway:  Hart  v. 
Township,  15  Ind.  226,  1860 ;  5  ib.  459.  See  Darlington  v.  Commonwealth, 
41  Pa.  St.  63. 
'  United  States  v.  Chicago,  7  How  (IT.  S).  185,  196. 

3  Rowans.  Portland, 8 B.Mon.  232, 1847;  Augustas.  Perkins,  t&.  207;  County 
v.  Newport,  12  ib.  538;  Wickliffe  v.  Lexington,  11  ib.  155;  Newport  v.  Taylor, 
16  ib.  699, 1855;  Stone  v.  Brooks,  35  Cal.  489,  1868;  Cook  v.  Burlington,  30 
Iowa,  94,  1870;  Hannibal  v.  Draper,  15  Mo.  634,  1852;  Schenley  v.  Common- 
wealth, 36  Pa  St.  62,  1859;  Doe  v.  Attica,  7  Ind.  641,  644,  1856;  Wyman  v. 
New  York,  11  Wend  487 ;  Livingston  v.  New  York,  8  Wend.  85 ;  McKenna 
v.  Commissioners,  Harper  (South  Car.),  Law,  381 ;  White  v.  Cower,  4  Paige, 
510;  Barclay  v.  Howell,  6  Pet.' 498,  506;  10  ib.  718;  Town  Councils.  Lithgoe, 
7  Eich.  (Law),  435;  Dubuque  v.  Maloney,  9  Iowa,  450;  Pope  v.  Union,  18 
N.  J.  Eq.  282.  Purchaser's  right  extends  to  have  all  streets,  &c,  remain 
public  which  were  marked  on  the  plan  exhibited  by  the  proprietor :  Bow- 
ant!.  Portland,  8  B.  Mon.  232,  1847;  Winona  t).  Huff,  11  Minn.  119;  Huber 
v.  Gazley,  18  Ohio,  18;  2  Smith  Lead.  Cas.  181;  Logansport  v.  Dunn,  8  Ind. 
378 ;  Dubuque  v.  Maloney,  supra. 


488  MUNICIPAL   CORPORATIONS.  fCH.  XVII. 

§  504.  A  dedication  of  land  for  a  public  square  was  not,  un- 
der the  circumstances  of  the  case,  implied  against  the  heirs  of 
the  grantor  from  its  representation  as  a  mere  blank,  undistin- 
guished from,  and  continuous  with,  the  streets  surrounding  it, 
upon  a  partition  map  made!  by  such  heirs,  and  by  reference  to 
which  they  conveyed  lots.1 

Acceptance  by  the  Public  —  When,  and  for  What  Purpose,  Neces- 
sary. 

§  505.  As  against  the  proprietor,  a  dedication  of  land  for 
streets  and  highways  may  be  complete  without  any  act  or 
acceptance  on  tbe  part  of  the  public;  but  in  order  to  charge 
the  municipality  or  local  district  with  the  duty  to  repair,  or  to 

So,  in  "Maryland,  it  is  laid  down,  "that  where  a  party  sells  property  lying 
within  the  limits  of  the  city,  and  in  the  conveyance  bounds  such  property 
by  streets  designated  as  such  in  the  conveyance,  or  on  a  map  made  by  the 
city,  or  by  the  owner  of  the  property,  such  a  sale  implies,  necessarily,  a 
covenant  that  the  purchaser  shall  have  the  use  of  such  streets:"  Moale  v. 
Baltimore,  5  Md.  314,  321,  1854;  following,  White  v.  Flannigan,  1  Md.  525, 
540,  1852;  distinguished  from  Underwood  v.  Stuyvesant,  19  Johns.  186; 
Howard  v  Rodgers,  4  Harr.  &  Johns.  278. 

Dedication  where  the  conveyance  bounds  the  purchasers  by  a  street  or 
public  square,  designated  on  a  map,  see  People  v.  Lambier,  5  Denio,  9,  19  ; 
Thirty-second  Street,  19  Wend.  128 ;  followed  in  Twenty-ninth  Street,  1 
Hill,  189;  Ib.  191;  Furman  Street,  17  Wend.  649;  8  ib.  85;  20  ib.  96';  2  Seld. 
257;  6  Ohio,  298;  Smith  v.  Lock,  18  Mich.  56,  1869;  M.  E.  Church  v.  Hobo- 
ken,  33  N.  J.  (Law)  13,  1868. 

1  Mayor,  &c.  of  New  York  v.  Stuyvesant,  17  N  Y.  34,  1858.  Mere  un- 
numbered triangular  space  in  plat,  bounded  by  streets,  without  user  by 
the  public  or  other  evidence  of  public  right,  held  not  to  establish  a  dedica- 
tion of  such  space  as  a  common:  Oswald  v.  Grenet,  15  Texas,  118,  1855. 

Mode  of  platting,  and  peculiarities  of  lines  and  spaces  on  plats  as  showin  g 
an  intention  to  dedicate,  or  the  reverse :  See  Sanlet  v.  New  Orleans,  10  La. 
An.  81;  Yates  v.  Judd,  18  Wis.  118;  Municipality  v.  Palfrey,  7  La.  An.  497; 
Livandais  v.  Municpality,  5  ib.  8 ;  Xiquer  v.  Bujac,  ib.  499 ;  Barclay  v.  How- 
ell's Lessee,  6  Pet.  498.  Water  Street,  with  open  space  on  river  side :  10  Pet. 
714.  Opposite  case  with  both  lines  of  Water  Street  denned  and  width  in- 
dicated: McLaughlin  v.  Stevens,  18  Ohio,  94,  1849,  distinguished  from 
Barclay  v.  Howell's  Lessee,  supra;  United  States  v.  Chicago,  7  How.  185; 
Commonwealth  v.  Alburger,  1  Whart.  (Pa.)  469;  Penny  Pot  Landing  Case, 
16  Pa.  St.  79;  Commonwealth  v.  McDonald,  .16  Serg  &  Rawle,  390;  Cowles 
i).  Gray,  14  Iowa,  1 ;  ,  Grant  v.  Davenport,  18  Iowa,  179 ;  Perrin  v.  Railroad 
Company,  36  N.  Y.  120;  Cook  v.  Hillsdale,  7  Mich.  115,  1859;  Newport  v. 
Taylor,  16  B.  Mon.  699,  1855. 


CH.  XVII.]  ACCEPTANCE   BY   THE    PUBLIC.  489 

make  it  liable  for  injuries,  for  suffering  the  street  or  highway 
to  be  or  remain  defective,  there  must  be  an  acceptance  of  the 
dedication.  And  this  acceptance  must  be  by  the  proper  or 
authorized  local  public  authorities.  It  may  be  express  and 
appear  of  record,  or  it  may  be  implied  from  repairs  made  and 
ordered,  or  knowingly  paid  for  by  the  authority  which  has  the 
legal  power  to  adopt  the  street  or  highway,1  or  from  long  user 
by  the  public.2 

1  State  v.  Wilson,  42  Maine,  9, 1856;  State  of  Maine  v.  Brfdbury,  40  Maine, 
154,  where  it  was  held,  that  as  a  surveyor  of  highways  had  no  power  to 
accept  a  dedication,  repairs  made  by  him  did  not  constitute  an  acceptance 
binding  upon  the  town :  Oswego  v.  Oswego  Canal  Company,  2  Seld.  257 ; 
Remington  e.  Millard,  1  Rh  Is.  93;  2  ib.  172,  493;  State  v.  Carver,  5  Strob. 
(South  Car.)  217;  Jennings  v.  Tisbury,  5  Gray,  73;  Kelly's  Case,  8  Gratt. 
(Va.)  632;  Bowman  v.  Boston,  5  Cush.  1;  Hyde  v.  Jamaica,  27  Vt.  443; 
Folsom  v.  Underhill,  36  Vt.  580;  Commonwealths  Belden,  13  Met.  10; 
Curtis  ii.  Hope,  19  Conn.  154;  2  Greenl.  Ev.  Sec.  662.  See,  on  this  sub- 
ject, Hobbso.  Lowell,  19  Pick.  415;  Teagarden  v.  McBean,  33  Miss.  283; 
Sampson  v.  Justices,  5  Gratt.  (Va.)  241,  1848;  Holmes  v.  Jersey  City,  1 
Beasl.  (N.  J.)  299;  Jersey  City  v.  State,  1  Vroom,  521 ;  State  v.  Johnson,  11 
Ire.  (Law)  647,  659 ;  Pope  v.  Union,  3  C.  E.  Green.  Proof  of  acceptance  of 
street  by  town  council  digging  a  well  therein :  Town  Council  v.  Lithgoe,  7 
Rich.  (Xaw)  435.  Other  proof  of  adoption :  Blodgettw.  Royalton,  17  Vt.40; 
Emery  v.  Washington,  1  Brayton  (Vt.),  128.  In  Michigan  it  has  been  sev- 
eral times  decided,  that  an  acceptance  of  a  plat  containing  streets,  &c,  by 
the  proper  authorities,  in  behalf  of  the  public,  was  essential  to  a  complete 
dedication :  People  v.  Jones,  6  Mich.  176;  Tillman  v.  People,  12  Mich.  401. 
In  Connecticut  the  whole  matter  of  the  dedication  and  acceptance  of  high- 
ways and  streets,  there  being  no  statute  on  the  subject,  rests  on  the  princi- 
ples of  the  common  law,  and  the  reasonable  doctrine  is  maintained  that  an 
acceptance  by  the  public  will  be  presumed  when  clearly  1  eneficial,  of 
which  the  actual  use  will  be  strong  evidence ;  but  a  reasonable  time  is  to 
be  allowed  for  such  acceptance,  and  in  the  case  of  a  cfty  street  opened  for 
settlement  upon  it,  a  reasonable  time  would  be  the  time  required  for  the 
settlement  of  the  adjoining  lots:  Guthrie  v.  New  Haven,  31  Conn.  308, 1863. 
The  acceptance,  on  the  part  of  an  incorporated  town  or  city,  of  an  amended 
charter,  which  includes  an  addition  previously  laid  off  and  platted,  amounts 
to  an  acceptance  of  such  addition  and  the  streets  and  alleys  therein :  Des 
Moines  v.  Hall,  24  Iowa,  234,  1868.  Under  the  Ohio  municipal  corporations 
act,  a  city  cannot  be  charged  with  the  duty  of  repairing  streets  dedicated, 
unless  its  assent  to  the  dedication  be  given :  Wisby  v.  Boute,  19  Ohio  St. 
238. 

2  Commonwealth  v.  Belden,  13  Met.  10,  1847;  Hemphill  v.  Boston,  8 
Cush.  195,  1851;  Jennings  v.  Tisbury,  5  Gray,  73,  1855;  Hayden  v.  Attlebor- 
ough,  7  Gray,  338;  Manderschid  v.  Dubuque,  29  Iowa,  73,  in  which  the  sub- 
ject is  well  discussed  by  Mr.  Justice  Beck.    See,  also,  State  v.  New  Boston, 

62 


490  MUNICIPAL   CORPORATIONS.  [CH.  XVII. 

Public  Squares  and  their  Uses. 

§  506.     Taking  private  property  for  a  public  square,  in  a  city, 
is  taking  the  same  for  public  use,  and  it  may  lawfully  be  done 

11  N.  H.  413,  where  the  court  says  that  "an  express,  formal  dedication  to 
the  public,  an  acceptance  by  some  public  agent  properly  authorized,  or  by 
long  use  of  the  public,  would,  upon  the  authorities,  constitute  a  public  high- 
way; though,  unless  there  had  been  an  acceptance,  express  or  implied,  it 
seems  the  road  would  not  become  a  highway."  By  mere  user  alone,  there 
being  no  element  of  dedication,  and  no  acceptance  or  facts  from  which  it 
can  be  implied,  the  land  does  not  become  a,  public  highway,  unless  the 
user  is  continuous  for  the  full  statutory  period ;  user  alone  for  a  less  period 
is  not  sufficient  to  charge  the  public  with  the  duty  to  repair,  imposed  by 
statute:  See  Jennings  v.  Tisbury,  5  Gray,  73,  1855;  Rowell  v.  Montville,  4 
Greenl.  270;  State  v.  Bradbury,  40  Maine,  154,  1855;  State  v.  Wilson,  42 
Maine,  9, 1856;  Commonwealth  v.  Low,  3  Pick.  408, 1826,  and  comments  on 
in  Commonwealth  v.  Belden,  13  Met.  10, 15, 1847 ;  Commonwealth  v.  Charles- 
town,  1  Pick.  179, 1822;  Reed  v.  Northfield,  13  Pick.  94,  1832 ;  Jones  v.  An- 
dover,  9  Pick.  146,  1829;  Eemington  v.  Millard,  1  Rh.  Is.  93.  If  not  a  pub- 
lic highway,  a  party  is  not  indictable  for  obstructing  it,  or  a  town  for  neg- 
lecting to  repair  it:  Hemphill  v.  Boston,  8  Cush.  195;  State  v.  Bradbury,  40 
Maine,  154;  Commonwealth  v.  Low,  3  Pick.  408;  Commonwealth  v.  Belden, 
13  Met.  10,  15 ;  State  v.  Richmond,  1  Rh.  Is.  49. 

The  principles  in  the  text  are  well  illustrated  by  the  case  of  the  State  v. 
Carver,  5  Strob.  (South  Car.)  Law,  217,  1850,  where  the  defendant  was  in- 
dicted for  obstructing  two  streets  in  an  addition  to  a  town.  The  streets 
were  designated  on  a  plat  by  the  proprietor,  and  the  defendant's  lots  were 
bounded  thereby.  Other  parties  were  interested  in  the  same  dedication, 
and,  against  their  protest,  defendant  fenced  up  the  streets  in  front  of  his 
lots.  These  had  never  been  accepted  by  the  town  authorities,  or  worked 
upon.  It  was  held  that  the  defendant  could  not  be  convicted  on  this  evi- 
dence, and  that  the  mere  assertion  of  the  public  right  to  the  streets  by  the 
prosecuting  officer  of  the  state,  by  indictment  for  their  obstruction,  was  not 
sufficient.  The  court,  admitting  that  there  was  a  dedication  so  far  as  the 
proprietor,  by  any  act  of  his,  could  effect  it,  remarked  that  "it  is  very  clear, 
from  the  authorities,  that  without  some  act  of  acceptance  or  some  use  by 
the  public,  the  owner  of  the  land  cannot  create  a  street  in  a  town,  or  a 
public  road  in  the  country.  The  reason  is  very  clear.  The  opening  and 
repairing  of  streets  and  roads  impose  an  expense  on  the  public,  and  [in 
this  state,  Commissioners  v.  Taylor,  2  Bay,  282]  subject  the  authorities, 
whose  duty  it  is  to  repair,  to  indictment  for  neglect  of  duty.  Now  this 
charge  and  liability  can  only  be  imposed  by  law,  but,  if  the  simple  act  of 
dedication  could  impose  them,  then  they  would  be  imposed,  not  by  law, 
but  by  the  will  of  an  individual.  All  the  cases,  both  English  and  Ameri- 
can, sustain  these  positions.  Rex  v.  Inhabitants  of  Leake,  5  Barn.  &  Adol. 
469,  does  not  decide  that  there  need  be  no  acceptance;  it  decides  only  that 
where  a  road  had  been  established,  by  use,  as  a  public  road,  the  parish  was 
bound  to  repair,  without  any  act  of  adoption.    The  use  by  the  public  was 


CH.  XVII.]  PUBLIC   SQUARES   AND  THEIR   USES.  491 

on  compensation  being  made;  and  the  mode  of  compensation, 
whether  by  a  tax  upon  the  whole  city,  or  upon  those  specially 
benefited,  is  a  matter  for  legislative  regulation.1 

§  507.  The  doctrine  of  dedication  to  public  use  has  also 
been  extended  and  applied  to  public  squares  in  cities  and  vil- 
lages, these  being  regarded  as  easements  for  the  benefit  of  the 
public,  and  the  fact  of  dedication  may  be  established  in  the 
same  manner  as  in  the  case  of  highways  and  streets.2 

the  same  as  adoption  by  the  parish."  Followed,  Town  Council  v.  Lithgoe, 
7  Rich.  (South  Car.)  Law,  435, 1854.  Liability  of  public  to  repair,  adopted 
as  test  to  determine  whether  a  road  is  public  or  private :  Teagarden  o.  Mc- 
Bean,  33  Miss.  283;  State  v.  Gregg,  2  Hill  (South  Car.),  388 ;  Smith  v.  Kin- 
ard,  ib.  642. 

1  Owners,  &c.  v.  Mayor,  &c.  15  Wend.  374,  1836;  Bouton  v.  Brooklyn,  15 
Barb.  375, 384  (as  to  assessment  for  park).  See  chapter  on  Eminent  Domain, 
ante,  and  on  Taxation,  post, 

1  Commonwealth  v.  Rush,  14  Pa.  St.  186,  1850;  State  v.  Wilkinson,  2  Vt. 
480.  Indictment  for  obstructing  public  square  of  St.  Albans  by  a  building : 
Abbott  v.  Mills,  3  Vt.  521;  State  v.  Catlin,  ib.  530,  as  to  Burlington  Common, 
or  Court  House  Square,  and  College  Green ;  State  v.  Trask,  6  Vt.  355 ; 
Watertown  v.  Cowen,'4  Paige  Ch.  (N.  Y.)  510,  as  to  village  square  laid  out 
by  proprietor,  following  the  doctrine  of  Cincinnati  v.  White,  6  Peters,  431 ; 
Huber  v.  Gazley,  18  Ohio,  18;  Leclerq  v.  Gallipolis,  7  Ohio,  pt.  1,  88;  Pear- 
sail  v.  Post,  20  Wend.  Ill,  117 ;  S.  C.  22  Wend.  425,  433,  451,  454 ;  Winona  v. 
Huff,  11  Minn.  119;  Doe  v.  Attica,  7  Ind.  641;  Heirs  of  Reynolds  v.  Commis- 
sioners, &c.  5  Ohio,  204  (donation  for  "county  buildings");  Smith  v.  Heus- 
ton  (donation  for  "public  [county]  buildings"),  6  Ohio,  101;  Browne. 
Manning  ("P.  Square"),  6  Ohio,  298;  Lebanon  v.  Commissioners,  &c. 
("public  ground")  9  Ohio,  80;  Dover  v.  Pox,  9  B.  Mon.  200. 

"  Whenever  a  public  square  or  common  is  marked  out  or  set  apart  as  such 
by  the  owners,  and  individuals  are  induced  to  purchase  lots  or  lands  border- 
ing thereon,  in  the  expectation  held  out  by  the  proprietor  that  it  should  so 
remain ;  or  even  if  there  are  no  marks  upon  the  ground,  but  a  map  or  plan  is 
made  and  lots  marked  thereon  and  sold  as  such,  it  is  not  competent  for  the 
proprietors  to  disappoint  the  expectations  of  the  purchasers  by  resuming 
the  lands  thus  set  apart  and  appropriating  them  to  any  other  use : "  Per 
Williams,  J.,  in  Abbott  v.  Mills  (Court  House  Square),  3  Vt.  526;  Price  v. 
Thompson,  48  Mo.  363. 

Nature  and  effect  of  a  conveyance  of  land  to  trustees,  with  an  election  to 
them  to  dedicate  as  a  public  square  or  not,  as  they  might  see  fit,  see  Mayor, 
&c.  of  New  York  u.  Stuyvesant,  17  N.  Y.  34,  1858 ;  11  Paige,  414. 

Conveyance  on  condition  that  the  land  be  used  only  for  a  town  house  : 
French  v.  Quincy,  3  Allen,  9. 

The  conveyance  of  a  block  of  ground  for  the  use  of  the  public  as  a 
"court  house  square,"  creates  a  trust  which  is  not  executed  by  a  sale  of  the 


492  MUNICIPAL   CORPORATIONS.  [CH.  XVII. 

§  508.  Where  the  words  "public  square"  are  used  on  a 
plat,  this  is  an  unrestricted  dedication  to  public  use,1  and  the 
use  varies  according  to  circumstances,  to  be  judged  of  and  di- 
rected by  the  proper  local  authorities  or  corporate  guardian, 
subject  to  the  control  of  the  laws  and  the  courts.2  The  local 
authorities  have,  however,  no  implied  power  to.  authorize  pri- 
vate dwelling  houses  or  other  private  structures  to  be  erected 
thereon,  and,  if  erected,  they  are  public  and  indictable  nui- 
sances.3 It  has  been  held,  that,  under  circumstances,  the 
corporate  authorities  may  authorize  (he  use  thereof  for  public 
buildings,  but  the  right  to  erect  county  buildings  upon  the 
public  square  of  a  county  town,  is  regarded  by  Chief  Juctice 
Gibson  as  resting  alone  on  a  usage  which,  in  Pennsylvania, 
"has  acquired  the  consistence  of  law."4 

block  or  a  portion  of  it,  and  the  application  of  the  proceeds  to  the  erection 
of  a  court  house :  County  Commissioners  v.  Lathrop,  Supreme  Court  of 
Kansas,  1872. 

1  Commonwealth  v.  Rush,  14  Pa.  St.  186,  1850 ;  Commonwealth  v.  Bow- 
man, 3  Barr,  203;  Alton  v.  Transportation  Company,  12  111.  60.  "Place,"  as 
used  in  plats  of  towns,  "is  a  French  word,  and  means  a  public  place  sur- 
rounded by  buildings,  kept  open  for  the  embellishment  of  a  city  or  the 
convenience  of  its  commerce:"  Per  Preston,  J.,  in  Xiques  v.  Bujac,  7  La.  An. 
499,  510,  1852;  Langley  v.  Gallipolis,  2  Ohio  St.  107.  Indefinite,  location:  Ring 
v.  Schoenberger,  2  Watts,  23. 

2  Commonwealth  v.  Alburger,  1  Whart.  (Pa.)  469,  per  Sergeant,  J.;  referred 
to  by  Gibson,  C.  J.,  Commonwealth  d.  Bowman,  supra. 

3  Commonwealth  v.  Rush,  14  Pa.  St.  186;  State  v.  Atkinson,  24  Vt.  448, 
1852;  Hutchinson  o.  Pratt,  11  Vt.  402,  423, per  Williams,  C.  J.;  Pomeroy  v. 
Mills,  3  Vi .  279 ;  State  v.  Woodward,  23  Vt.  92,  1850 ;  Columbus  v.  Jacques 
(market  house  in  street),  30  Geo.  506;  State  v.  Mobile,  5  Port.  (Ala.)  279; 
People  v.  Carpenter,  2  Doug.  (Mich.)  273,  1849;  Cooper  v.  Alden,  Harring. 
Ch.  (Mich.)  72.  As  to  erections,  under  the  civil  law,  upon  lands  dedicated 
to  public  use,  see  New  Orleans  v.  United  States,  10  Pet.  661,  725,  735,  per 
McLean,  J. 

*  Langley  v.  Gallipolis,  2  Ohio  St.  107,  110,  1853,  per  Bartley,  C.  J. ;  Com- 
monwealth v.  Bowman,  3  Pa.  St.  203,  1846.  In  this  case  the  defendants 
were  indicted  for  occupying,  by  authority  from  the  county  commissioners, 
a  building  upon  the  square  (dedicated  without  restriction)  of  an  incorpora- 
ted town.  Gibson,  C.  J.,  said:  "The  public  square  is  as  much  a  highway  as 
if  it  were  a  street,  and  neither  the  county  nor  the  public  can  block  it.up,  to 
the  prejudice  of  the  public  or  of  an  individual.  *  *  It  is  dedicated  to  the 
use  of  all  of  the  citizens  as  a  highway,  and  all  have  a  right  to  pass  over  it 
without  unreasonable  let  or  hindrance — in  which  respect  it  differs  from 
the  public  squares  in  Philadelphia,  which  are  dedicated  to  health  and  re- 


CH.  XVII.]  PUBLIC    SQUARES   AND   THEIR    USES.  493 

§  509.  The  uses  and  purposes  of  a  public  square  or  commons 
are,  in  some  respects,  different  from  those  of  a  public  highway. 
Thus,  a  street  or  highway  cannot  be  enclosed  by  the  local 
authorities.  But  a  public  square  or  common  in  a  town  or  city 
where  the  dedication  is  general,  and  without  special  limitation 
or  use,  may  be  enclosed,  notwith standing  it  has  remained  open 
for  many  years  and  improved  and  ornamented  for  recreation 
and  health.  But  the  place  must,  for  the  purpose  of  the  dedi- 
cation, remain  free  and  common  to  the  use  of  all  the  public.1 

creation,  and  which  are  necessarily  subjected  to  regulation  by  the  local 
authorities."  The  case,  however,  recognizes  the  right  of  the  county  to 
reasonable  accommodation  for  its  court  house  and  public  offices  in  the  great 
square  of  the  county  town,  the  foundation  of  this  right  being,  as  expressed 
by  Gibson,  C.  J.,  "one  of  the  usages  of  our  state,  which  has  acquired  the 
consistence  of  law."  The  extent  of  the  right  is  limited  to  the  single  pur- 
pose sanctioned  by  the  usage:  Commonwealth  v.  Bowman,  3  Pa.  St.  203, 
1846.  In  Indiana,  it  is  said  by  Davison,  J.,  arguendo,  in  Westfall  v.  Hunt, 
8  Ind,  174,  that  "the  phrase,  ' public  square,'  when  used  in  our  statutes  — 
as  also  in  its  popular  import — refers  almost  exclusively  to  grounds  occupied 
by  the  court  house  and  owned  by  the  county."  Control  of  public  square 
within  the  limits  of  the  city  corporation,  on  which  a  court  house  and  jail 
were  situated,  held  to  be  in  the  city  authorities,  against  whose  ordinance 
the  county  authorities  could  not  create  a  nuisance  by  the  erection  of  horse- 
racks  thereon :  Samuels  v.  Nashville,  3  Sneed  (Tenn.),  298,  1855. 

Respective  rights  of  city  and  county  in  square,  and  effect  of  abandonment 
by  county :  County  v.  Newport,  12  B.  Mon.  538,  1851 ;  Augusta  v.  Perkins,  8 
ib.  207;  Rutherford  v.  Taylor,  38  Mo.  315. 

1  Langley  v.  Gallipolis,  2  Ohio  St.  107,  1853. 

May  be  enclosed  and  ornamented:  Hutchinson  v.  Pratt,  11  Vt.  402,  423,  1839, 
where  Williams,  C.  J.,  points  out  some  of  the  differences  between  public 
squares  and  commons  and  highways;  Leftwich  v.  Mayor,  14  La.  An.  152, 
1849.  In  this  case,  Merrick,  C.  J.,  observes:  "As  a  public  square  is  not  de- 
signed as  a  highway  or  thoroughfare  for  all  sorts  of  conveyances,  but  is 
intended  as  an  ornament  of  a  town  and  place  of  recreation  and  amusement, 
the  corporate  authorities  may  enclose  the  same."  Compare  remarks  of 
Gibson,  C.  J.,  in  Commonwealth  v.  Bowman,  supra,  Sec.  508,  note. 

"Square"  denned :  M.  E.  Church  v.  Hoboken,  33  N.  J.  (Law)  13,  1868. 

"By  a 'town  common,' in  common  parlance,  is  understood  an  enclosed 
or  unenclosed  place  belonging  to  the  town,  and  in  which  no  individual  has 
a  private  property:  "  Per  Gaston,  J.,  in  Commissioners  v.  Boyd,  1  Ire.  (Law) 
194,  1840. 

Ferry  right  of  riparian  donor  on  the  dedicated  front  or  commons  recog- 
nized as  reserved  by  him  by  reason  of  long  user  and  acquiescence  therein 
by  the  public:  Newport  v.  Taylor,  16  B.  Mon.  699,  1855.  As  to  ferries,  see 
ante,  Chap.  VI.  p.  117. 


494  MUNICIPAL   CORPORATIONS.  [CH.  XVII. 

Dedication  for  Other  Purposes. 

§  510.  Property  may  also  be  dedicated  in  writing  or  by 
parol,  to  other  municipal,  public,  or  charitable  uses,  such  as 
church  squares  or  lots;1  for  a  buryiug-ground ; 2  for  markets;3 
for  public  buildings ; 4  for  school  purposes;5  and  for  purposes 
of  recreation  and  ornament,6  But  the  use  must  be  a  public 
one.7 

1  Antones  o.  Eslava,  9  Port,  (Ala,)  527,  1839  j  Hannibal  v.  Draper,  15  Mo. 
634,  1852.  Church  lots  on  plat  held  to  he  a  dedication  for  a  public  purpose, 
in  which  the  municipality  has  an  interest,  and  can  eject  the  dedicator  or 
his  grantee.  But  Mr.  Chief  Justice  JSustes's  opinion  is,  that  by  such  a  des- 
ignation the  property  is  not  locus  publious,  but  private :  Xiques  v.  Bujac,  7 
La.  An.  449.  In  this  case,  relating  to  "  Annunciation  Place,"  or  "Square," 
the  civil  law  relating  to  dedications — and  particularly  dedications  for 
church  purposes — is  very  fujly  considered. 

Under  general  dedication  of  "Church  Square,''  what  church  entitled: 
Christian  Church  v.  Scholte,  2  Iowa,  27 ;  Chapman  v,  Gordon,  29  Geo.  250 ; 
Beatty  v.  Kurt?,  2  Pet.  C.  C.  R.  566;  Shapleigh  v.  Pillsbury,  1  Greenl.  (Me.) 
271,  280;  Rice  v.  Osgood,  9  Mass.  38;  Pearsall  ».  Post,  20  Wend.  Ill,  I18,per 
Cowen,  J. 

2  Hunter  v.  Sandy  Hill,  6  Hill  (N.  Y.),  407,  1844;  criticised,  2  Smith  Lead. 
Cas.  4th  ed.  193.    See,  also,  Post  v.  Pearsall,  22  Wend.  425,  454. 

3  Dummer  v.  Jersey  City,  1  Spencer  (N.  J.),  86, 1843;  The  President,  &c. 
v.  Indianapolis,  12  Ind.  620. 

4  Heirs  of  Reynolds  v.  Commissioners,  5  Ohio,  204 ;  Smith  «.  Hueston,  6 
Ohio,  101;  76.298,305. 

5  Klinkener  „,  School  District,  11  Pa.  St.  444. 

6  Pella  v,  Scholte,  24  Iowa,  283.  The  words  on  a  plat,  "  Garden  Square," 
held  not  necessarily  to  imply  a  dedication  :  lb.  So  of  the  words,  "  Spencer 
Square ;"  Logansport  v.  Dunn,  8  Ind.  378.  Square  marked  "  Coliseum:"  Li- 
yandais  v.  Municipality,  lfi  La.  512;  Xiques  v.  Bujac,  7  La.  An,  499;  Cox  v. 
Griffin,  18  Geo.  728.  The  word  "Park"  on  plat  construed;  Perrin  v.  Rail- 
road Company,  36  N.  Y.  120 ;  Price  v.  Thompson,  38  Mo.  363,  In  this  last  case 
it  was  held,  that  under  the  statute  of  Missouri,  respecting  the  dedication  of 
property  to  public  use,  the  corporate  authorities  of  a  town  could  not, 
against  the  objection  of  the  adjoining  lot  owners,  lay  out  a  street  through  a 
public  park,  as  this  was  a  diversion  of  the  use.  Whether  they  could  do 
this  under  the  delegated  power  of  eminent  domain  on  payment  of  damages 
was  not  determined.  Rights  of  adjacent  owners:  See  chapter  on  Streets, 
post. 

Servitudes  of  view  arising  from  dedication  to  public  use :  French  v.  Railroad 
Company,  2  La.  An.  80. 

'  Todd  v. Railroad  Company,  19  Ohio  St.  514.  Marking  on  plat  a  lot,  "De- 
pot of  O.  &  P.  Railroad,"  does  not  dedicate  it:  lb.;  S.  P.  McWUHams  v, 
Morgan,  111.  Supreme  Court,  January,  1872,  not  yet  reported, 


CH.  XVII.]  DEDICATION   FOR   OTHER   PURPOSES.  495 

§  511.  Lands  dedicated  to  the  public,  without  restriction, 
upon  the  margin  of  a  navigable  river,  may  be  used  for  a  landing 
or  wharf,  as  well  as  purposes  of  passage.1  Upon  the  adjudged 
cases  there  exists  some  doubt  whether  the  public  can  prescribe 
for  or  claim,  by  way  of  implied  or  common  law  dedication, 
land  for  a  public  landing.  There  may  be  an  express  dedica- 
tion for  this  purpose,  and,  on  principle,  within  the  limits  of 
a  municipality  bordering  on  navigable  waters,  it  would  seem 
to  be  going  too  far  to  say,  that  in  no  case  can  a  common  law 
dedication  of  land  for  a  public  wharf  or  landing  be  shown  by 
user,  and  the  proprietor  estopped  from  denying  the  right  of 
the  public  to  such  use.2 

Alienation  and  Change,  of  Use. 

§  512.  A  municipal  corporation  has  no  implied  or  incidental 
authority  to  alien  or  dispose  of,  for  its  own  benefit,  property 
dedicated  to  or  held  by  it  in  trust  for  the  public  use,  nor  can 

1  Newport  v.  Taylor,  16  B.  Mon.  699,  1855;  Godfrey  v.  Alton,  12111.29, 
1850;  Alton  v.  Transportation  Company,  12  111.  60;  Mayor  v.  Wright,  6 
Yerg.  (Tenn.)  497,  1834.  In  this  last  case  it  was  held,  that  a  part  of  the 
public  promenade  might,  by  the  direction  of  the  city,  be  converted  into  a  land- 
ing or  wharf.  The  opinion  asserts,  arguendo,  a  measure  of  power  in  the 
corporation  over  the  public  property  entirely  too  broad.  As  to  Wharves, 
see  ante,  Chap.  V.  p.  117,  et  seq. 

2  Denying  that  the  principle  of  implied  dedication  of  public  ways, 
squares,  &c,  by  long  user  and  acquiescence,  extends  to  public  landings,  see 
Pearsall  v.  Post,  20  Wend.  Ill,  1838;  affirmed,  22  Wend.  425.  In  these  cases 
the  history  and  nature  of  dedications  to  public  use  are  learnedly  consid- 
ered, and  the  numerous  cases  collected,  digested,  and  commented  on.  Same 
principle,  Bethum  v.  Turner,  1  Greenl.  (Me.)  Ill;  State  v.  Wilson,  42 Maine, 
9,  where  the  nature  of  landings  and  the  respective  rights  of  the  owner  of 
the  soil  and  the  public  are  elaborately  considered ;  Littlefield  v.  Maxwell, 
31  Maine,  134.  But  that  there  may  be  a  prescriptive  right  to,  or  a  dedication 
of,  public  landings,  see  Penny  Pot  Landing,  16  Pa.  St.  79,  1851;  Coolidge  v. 
Learned;  8  Pick.  504 ;  Municipality  v.  Kirk,  5  La.  An.  34. 

The  words,  "reserved  landing,"  on  proprietor's  recorded  plat,  held  to  indi- 
cate intention  not  to  dedicate :  Grant  v.  Davenport,  18  Iowa,  179 ;  Cowles  v. 
Gray,  14  Iowa,  1.  Where  land  is  dedicated  as  a  "commons"  along  a  navi- 
gable street,  the  public  authorities  may  build  wharves:  Newport  v.  Taylor, 
16  B.  Mon.  699,  1855. 


496  MUNICIPAL   CORPORATIONS.  [CH.  XVII. 

it  extinguish  the  public  uses  in  such  property,  nor  is  such 
property  subject  to  the  payment  of  the  debts  of  the  munici- 
pality.1 

§  513.  How  far  the  legislature  has  the  power  to  confer  upon 
the  municipality  authority  to  dispose  of  lands  held  for  such 
purposes  is  a  more  difficult  question,  and  depends,  we  should 
say,  upon  the  nature  and  extent  of  the  dedication.  As  between 
the  municipality  and  the  general  public,  the  legislative  power 
is  supreme.  And  so  it  is  in  all  cases  where  there  are  no  pri- 
vate rights  involved.  If  the  municipal  corporation  holds  the 
full  title  to  the  ground  for  public  uses,  without  restriction,  the 

,  1  M.  E.  Church  v.  Hoboken,  33  N.  J.  (Law)  13,  1868;  Augusta  v.  Perkins, 
3  B.  Mon.  437;  Buokner  v.  Augusta,  1  A.  K.  Marsh.  9;  Alves  v.  Henderson, 
16  B.  Mon.  131,  168,  1855;  Kennedy  v.  Covington,  8  Dana,  50;  Rutherford 
v.  Taylor,  38  Mo.  315 ;  Price  v.  Thompson,  48  Mo.  363  ;  Alton  e.  Transporta- 
tion Company,  12  111.  60 ;  San  Antonio  v.  Lewis  (plaza  or  commons),  15 
Texas,  388,  1855;  1  ib.  288;  New  Orleans  v.  United  States,  10  Pet.  734; 
Warren  v.  Lyons  City,  22  Iowa,  351,  1867;  Ransom  s.  Boal,  29  Iowa,  68, 
1870 ;  Branham  v.  San  Jose,  24  Cal.  585,  1864.  And  see  the  learned  and 
valuable  opinion  of  Baldwin,  J.,  in  Hart  v.  Burnett,  15  Cal.  580,  as  to  the 
power  of  the  Spanish  municipal  authorities  over  the  lands  of  the  pueblo. 

A  city  council  cannot  sell  a  public  square  without  authority  from  the  legis- 
lature, even  though  the  corporation  holds  it  "  for  such  public  uses  as  the 
council  may,  from  time  to  time,  direct  and  ordain,"  and  the  object  of  selling 
is  to  apply  the  proceeds  to  the  public  use  of  paying  1he  debts  of  the  corpo- 
ration incurred  for  public  purposes :  Commonwealth  v.  Eush,  14  Pa.  St.  186, 
1850;  Commonwealth  v.  Alburger,  1  Whart.  469,  per  Sergeant,  J. 

Dedication  on  plat  of  two  lots  "  for  school  purposes,  and  on  which  to  erect 
school  houses,"  is  a  dedication  to  a  specific  use,  and  the  property  is  inalien- 
able by  the  incorporated  place  in  which  it  lies,  so  as  to  extinguish  the  use. 
And  there  is  no  power  of  alienation  without  the  consent  of  the  dedicator 
or  his  representatives,  even  though  the  lots,  by  reason  of  a  railroad  and 
depot  near  by,  have  been  rendered  unsuitable  for  school  houses,  and  their 
use  for  that  purpose  dangerous:  Board  v.  Edson,  18  Ohio  St.  221,  1868. 

Where  lots  are  granted  to  county  commissioners  and  their  successors,  in 
trust  for  the  use  of  the  said  county  in/ee  simple  for  the  purpose  of  erecting 
thereon  county  buildings,  which  were  erected,  the  land,  on  the  subsequent 
removal  of  the  seat  of  justice  and  the  discontinuance  of  the  original  uses, 
does  not  revert  to  the  original  grantor  or  his  heirs:  Seebolt  v.  Shitler,  34 
Pa.  St.  133,  1859. 

"Market  space,"  on  plat,  makes  it  public,  and  when  exchanged  by  legisla- 
tive authority  for  other  property  for  a  "market  space,"  that  other,  though 
deeded  to  the  city  in  fee  simple,  is  held  by  the  city  in  trust,  and  cannot  be 
sold  on  execution  in  payment  of  the  corporate  debts:  President,  &c.  v.  In- 
dianapolis, 12  Ind.  620. 


CH.  XVII.]  PUBLIC    SQUARES    AND   THEIR   USES.  497 

legislature  may  doubtless  direct  and  regulate  the  purposes  for 
which  the  public  may  use  it.1  But  if  a  grant  be  made  by  a 
proprietor  of  a  town  in  laying  it  out  for  a  specific  and  limited 
purpose,  as,  for  example,  a.  public  square,  the  municipality  or 
public  acquiring  only  an  easement,  it  has  been  decided  by  the 
Supreme  Court  of  Iowa  that  the  grantor  in  such  a  case  retains 
an  interest  therein  of  such  a  nature  that  it  is  not,  as  against 
him,  within  the  power  of  the  legislature  to  authorize  its  sale 
by  the  municipality.2 

§  514.  By  the  civil  law  the  public  have,  in  land  dedicated  to 
public  use,  the  right  to  the  ground  itself.3    But  such  lands 

1  The  streets  and  public  squares  of  the  city  of  Washington  were  con- 
veyed by  the  original  proprietors  of  the  lands  to  trustees,  "  for  the  use  of 
the  United  States  forever."  It  was  held  that  these  words  conveyed  an  ab- 
solute, unconditional  fee  simple,  and  that  the  original  proprietors  had,  as 
such,  no  interest  therein,  and  could  not,  therefore,  object  to  a  sale  author- 
ized by  an  act  of  Congress,  of  such  portions  thereof  as  were  no  longer  use- 
ful for  streets  and  squares:  Van  Ness  v.  Washington,  4  Pet.  (U.  S.)  232, 
1830. 

»  Warren  v.  Lyons  City,  22  Iowa,  351,  1867. 

In  the  County  Commissioners  v.  Lathrop,  1872,  not  yet  reported,  the  Su- 
preme Court  of  Kansas  holds  that  the  legislature  so  far  represents  the  pub- 
lic that  its  consent  to  the  alienation  of  public  grounds  dedicated  under 
the  statute  is  sufficient  if  no  private  rights  have  intervened.  But  that  in- 
dividuals purchasing  from  the  town  proprietors  lots  fronting  on  such  public 
grounds,  subsequent  to  their  dedication,  and  making  lasting  and  valuable 
improvements  thereon,  when  lots  are  enhanced  in  value  by  their  position, 
and  would  be  made  of  less  value  by  a  change  of  such  grounds  from  public 
to  private  use,  have  a  vested  interest  in  the  trust  which  the  legislature  can- 
not destroy:  See  Chap.  XVIII.  on  Streets, post. 

Where  the  public  have  only  an  easement,  the  legislature  cannot  pass  a 
law  vesting  so  much  of  a  street  as  may  be  closed  or  discontinued  in  the 
corporation  of  a  city,  as  this  deprives  the  owner  of  his  property  without  due 
process  of  law :  John  and  Cherry  Streets,  19  Wend.  659.  In  Connecticut, 
the  public  have  simply  an  easement  in  highways,  with  the  right  to  use  ma- 
terials thereon,  in  a  reasonable  manner,  to  make  or  repair  them;  the  ad- 
joining land  owner  retains  the  fee  and  the  exclusive  right  to  herbage  grow- 
ing thereon,  and  the  public  cannot  put  their  cattle  in  the  highway  to  graze ; 
and  it  is  expressly  held  that  under  such  circumstances  the  legislature  can- 
not, without  providing  compensation,  authorize  towns  to  pass  by-laws 
giving  liberty  to  the  inhabitants  to  depasture  their  cattle  in  the  public 
highways :  Woodruff «.  Neal,  28  Conn  .168, 1859.  As  to  extent  of  legislative 
power,  see  ante,  Chap.  IV.    Post,  chapter  on  Streets. 

3  Renthrop  v.  Bourg,  4  Martin  (La.),  97;  Doe  «..Jones,  11  Ala.  63,  83. 
63 


498  MUNICIPAL   CORPORATIONS.  [CH.  XVII. 

form  no  part  of  the  public  domain  or  crown  lands,  and  the 
king  or  sovereign  cannot  alien  them  otherwise  than  by  exer- 
cise of  the  right  of  eminent  domain,  although  he  may  author- 
ize certain  erections  thereon.1  And  the  doctrine  has  been 
declared  by  the  Supreme  Court  of  Louisiana,  that  where  public 
places  have  been  destined  or  created  by  the  sovereign -power, 
or  with  its  consent,  this  power  may  authorize  the  municipal 
corporation  interested  in  such  places  to  alien  or  to  change 
their  use  or  destination  whenever  the  public  interest  requires 
it,  and  that  the  rights  of  the  owners  of  property  in  the  vicinity 
are  subordinate  to  this  paramount  right  of  the  legislature.2 

1  New  Orleans  v.  "United  States,  10  Pet.  661,  725,  735,  where  McLean,  J., 
examines  very  fully  the  laws  of  France~and  Spain  in  respect  to  dedications 
to  public  use :    3  Kent  Com.  451,  and  note. 

1  Mayor,  &c.v.  Hopkins,  13  La.  326;  Mayor,  &c.  v.  Leverich,  ii.332 ;  Delabi- 
garre«.  Municipality,  3  La.  An.  230.  It  was  decided,  both  by  the  state  court 
(Mayor,  &c.  v.  Hopkins,  supra,  and  see  De  Armas  v.  Mayor,  et  al.  5  La.  132)  and 
by  the  Supreme  Court  of  the  United  States,  that  the  public  space,  or  quay,  in 
front  of  Old  Levee  street  and  the  river,  in  the  city  of  New  Orleans,  was 
public  property,  hors  de  commerce  (New  Orleans  v.  United  States,  10  Pet.  662) 
and  did  not  pass  to  the  United  States  under  the  treaty  of  cession  of  the 
province  of  Louisiana.  Pending  the  controversy  between  the  United  States 
and  the  city  of  New  Orleans  as  to  the  ownership  of  this  property,  the  par- 
ties litigant  agreed  that  it  should  be  laid  out  into  lots  and  sold,  and  the 
proceeds  be  held  subject  to  the  final  decision  of  the  court.  After  judgment 
was  rendered  in  favor  of  the  city  of  New  Orleans,  the  legislature  of  Louisi- 
ana passed  an  act  sanctioning  the  sale  of  this  public  property,  and  the 
question  arose  whether  the  legislature  had  this  power.  The  Supreme 
Court  of  Louisiana  held  that  the  legislature  possessed  this  right,  laying 
down  the  principle  that  the  sovereign  power  of  the  state  had  the  right  to 
change  the  destination  of  public  places  whenever  it  deemed  the  interest  of 
the  public  required  it,  and  that  the  right  of  the  adjacent  lot  proprietors  was 
necessarily  subordinate  to  the  paramount  power  of  the  legislature:  Mayor, 
&c.  v.  Hopkins,  13  La.  326;  Same  v.  Leverich,  ib.  332. 

Upon  the  subject  of  the  power  of  a  municipal  corporation  to  alien  public 
places  with  the  consent  of  the  sovereign  power  of  the  state,  see  opinion  of 
McLean,  J.,  in  New  Orleans  v.  United  States,  10  Pet.  662,  720.  See,  also, 
Hebertt).  LeValle,  27  111.  448;  Bell  v.  Railroad  Company,  25  Pa.  St.  161; 
S.  C.  dissent  of  Black,  C.  J.,  1  Grant  Cas.  105,  1854;  Warren  v.  Lyons  City, 
22  Iowa,  351,  1867;  Philadelphia,  &c.  v.  Railroad  Company,  6  Whart.  26; 
County  Commissioners  v.  Lathrop,  MSS.  Supreme  Court,  Kansas,  1872; 
Hart  v.  Burnett,  15  Cal.  580;  Payne  v.  Treadwell,  16  Cal.  222 ;  distinguished 
by  Field,  C.  J.,  in  Gr'ogan  v.  San  Francisco,  18  Cal.  590,  614. 

Legislature  may  authorize  sale  of  "commons:"  Woodson  v.  Skinner,  22 
Mo;  13,  1855;  Carondelet  v.  McPherson,  20  Mo.  192;  Swartz  v.  Page,  13  Mo. 


CH.  XVII.]  REVERTER.  —  MISUSER. — REMEDY.  499 

Reverter. — Misuser. — Remedy. 

§  515.  Property  dedicated  to  public  use,  or  to  a  particular 
use,  does  not  revert  to  the  original  owner  except  where  the 
execution  of  the  use  becomes  impossible.  If  the  dedicated 
property  be  appropriated  to  an  unauthorized  use,  equity  will 
cause  the  trust  to  be  observed  or  the  obstructions  removed.1 

610 ;  Les  Bois  v.  Bramell,  4  How.  (U.  S.)  449,  458.  See  ante,  Chap.  IV.,  as  to 
extent  of  legislative  power  over  corporations  and  their  property.  The 
boundaries  of  the  power,  if  indeed  it  has  any  limits,  are  not  easily  defined. 
See,  also,  chapter  on  Corporate  Property,  ante;    post,  chapter  on  Streets. 

1  Per  McLean,  J.,  Barclay  v.  Howell's  Lessee,  6  Pet.  498,  507, 1832;  Wil- 
liams v.  The  Church,  1  Ohio  St.  478,  1853;  Webb  v.  Moler,  8  Ohio,  552; 
Price  v.  Thompson,  48  Mo.  363;  Warren  v.  Lyons  City,  22  Iowa,  351,  1867, 
per  Wright,  J.;  Price  v.  M.  E.  Church,  4  Ohio,  514;  Brown  v.  Manning,  6 
Ohio,  298;  LeClerq  v.  Gallipolis,  7  Ohio,  pt.  1,  217;  Board  v.  Edson,  18  Ohio 
St.  221, 1868 ;  Harris  v.  Elliott,  10  Pet.  25 ;  County  v.  Newport,  12  B.  Mon. 
538;  Augusta  v.  Perkins,  8  B.  Mon.  207. 

Conveyance  to  municipality  on  condition  that  the  property  be  used  for  a 
specific  purpose :  French  v.  Quincy,  3  Allen,  9.  As  to  remedy,  see  chapter 
on  Streets,  post. 


500  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

CHAPTER  XVIII. 

Streets. 

§  516.  Municipal  corporations  in  this  country  sustain  most 
important  relations  to  streets  and  highways  within  their  limits.  By 
statute  or  charter  they  are  usually  authorized  to  open,  estab- 
lish, .alter,  and  vacate  streets.  Land  may  be  dedicated  for 
streets  and  ways,  as  we  have  elsewhere  shown.  The  authori- 
ties of  these  corporations  are  usually  invested  with  the  capacity 
to  acquire  property  for  streets  for  the  public  use  and  conveni- 
ence, by  the  exercise  of  the  power  of  eminent  domain.  Streets, 
when  dedicated  and  accepted  by  the  corporation,  or  acquired 
by  purchase  or  otherwise,  are  usually  placed  under  the  control 
of  the  corporation  with  power  to  improve,  grade,  pave,  regu- 
late, &c.  In  some  of  the  states  there  are  statutes  providing 
that  the  fee  in  the  streets  shall  be  in  the  municipality  in  trust 
for  the  public,  while  in  other  states  the  fee  is  considered  to  be 
in  the  adjoining  proprietor,  and  an  easement  only  in  the  pub- 
lic. The  right  of  municipalities  to  acquire  public  streets  by 
dedication,1  and  the  power  to  condemn  private  property  for 
this  purpose  by  the  exercise  of  the  delegated  right  of  eminent 
domain,  have  been  elsewhere  considered,2  and  the  liability  of 
municipal  corporations  in  respect  to  defects  and  want  of  repair 
of  the  public  streets  within  their  limits,  will  be  reserved  for 
treatment  in  another  place.3 

§  517.  The  subject  of  Streets  will  be  considered  in  this  place 
under  the  following  heads :  — 

1.  Legislative  Control  over  Streets,  and  their  Uses  ;  and  herein 
of  obstructions  and  the  remedy  of  the  public  by  indictment  and  in 
equity ;  the  remedy  of  the  adjoining  proprietors  and  others,  in- 
cluding the  municipal  corporation ;  and  the  effect  of  adverse 
possession,  and  the  operation  of  statutes  of  limitation — Sees.  518- 
533. 

1  Ante,  Chap.  XVII.  Sec.  489,  et  seq. 
J  Ante,  Chap.  XVI.  Sec.  452,  et  seq. 
8  Post,  Chap.  XXIII.,  on  Actions. 


CH.  XVIII.J  LEGISLATIVE  CONTROL  OVER  STREETS.  501 

2.  The  Establishment  and  Control  of  Ordinary  Roads  and 
Ways  within  Corporate  Limits — Sees.  534-537. 

3.  Delegated  Power  of  Municipal  Corporations  over  Streets,  and 
their  Uses;  and  herein  of  the  power  to  grade  and  improve 
streets  ;  and  to  authorize  them  to  be  used  for  other  purposes 
than  mere  travel,  such  as  public  sewers  and  cisterns,  for  gas  and 
water  pipes,  telegraph  poles,  for  common  railroads  and  horse  rail- 
ways ;  also,  their  powers  and  duties  as  to  bridges  within  their 
limits— Sees.  538-580. 

4.  Limitations  on  the  Right  to  Free  Transit  and  Use  of  Streets 
—  Sees.  581-585. 

Legislative  Control  over  Streets,  and,  their  Uses  —  Its  Extent — Le- 
galization of  Obstructions. 

§  518.  Public  streets,  squares,  and  commons,  unless  there 
be  some  special  restriction  when  dedicated  or  acquired,  are 
for  the  public  use,  and  the  use  is  none  the  less  for  the  public  at 
large,  as  distinguished  from  the  municipality,  because  they  are 
situate  within  the  limits  of  the  latter,  and  because  the  legisla- 
ture may  have  given  the  supervision  and  control  of  them  to 
the  local  authorities.  The  legislature  of  the  state  represents 
the  public  at  large,  and  has  full  and  paramount  authority  over 
all  public  ways  and  public  places.  "  To  the  commonwealth 
here,"  says  Chief  Justice  Gibson,  "as  to  the  king  in  England, 
belongs  the  franchise  of  every  highway  as  a  trustee  for  the 
public;  and  streets  regulated  and  repaired  by  the  authority  of 
a  municipal  corporation  are  as  much  highways  as  are  rivers, 
railroads,  canals,  or  public  roads,  laid  out  by  the  authority  of 
the  quarter  sessions."  x 

1  Per  Gibson,  C.  J.,  O'Connor  v.  Pittsburg,  18  Pa.  St.  187,  189,  185i.  See, 
further,  as  to  legislative  power  over  public  streets  and  their  uses,  Trenton 
Railroad  Case,  6  Whart.  25 ;  Commissioners  v.  Gas  Company,  12  Pa.  St.  318; 
Stuber's  Road,  28  Pa.  St.  199;  Stormfeltz  v.  Turnpike  Company,  13  Pa.  St. 
555,1860;  Gray  v.  Iowa  Land  Company,  26  Iowa,  387,  1868 ;  distinguished 
from  Warren  v.  Lyons  City,  22  Iowa,  351 ;  Railroad  Company  v.  Brownell, 
24  N.  Y.  345,  1862;  Reading  v.  Commonwealth,  11  Pa.  St.  196;  Woodruff  v. 
Neal,  28  Conn.  168, 1859;  Jones  River  Co.  v.  Anderson,  12  Leigh  (Va.),  276; 
Woodson  v.  Skinner  (sale  of  commons),  22  Mo.  13, 1855;  Bailey  v.  Railroad 
Company,  4  Harring.  (Del.)  389, 1846;  Mercer  v.  Railroad  Company,  36  Pa. 
St.  99, 1859;  Clinton  v.  Railroad  Company,  24  Iowa,  455;  Railroad  Company 


502  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

§  519.  By  virtue  of  its  authority  over  public  ways,  the  leg- 
islature may  authorize  acts  to  be  done  upon  them  or  legalize 
obstructions  therein,  which  would  otherwise  be  deemed  nui- 
sances. As  familiar  instances  of  this,  may  be  mentioned  the 
authority  to  railway,  water,  telegraph,  and  gas  companies,  to 
use  or  occupy  streets  and  highways  for  their  respective  pur- 
poses. And  it  may  be  here  observed,  that  whatever  the  legis- 
lature may  authorize  to  be  done  is  of  course  lawful,  and  of 
such  acts,  done  pursuant  to  the  authority  given,  it  cannot  be 
predicated  that  they  are  nuisances ;  if  they  were  such  without, 
they  cease  to  be  nuisances  when  having  the  sanction  of,  a  valid 
statute.1  As  respects  the  public  or  municipalities,  there  is  no 
limit  upon  the  power  of  the  legislature  as  to  the  uses  to  which 
streets  may  be  devoted.  "What  limitations  exist  upon  the 
power  as  respects  the  original  proprietor  of  property  dedicated 
to  the  public  use,  or  the  adjoining  owner  or  others,  is^a  subject 
which  is  elsewhere  considered.  Statutes  legitimating  acts  and 
obstructions  upon  the  highways  which  would  otherwise  be 
nuisances  are  strictly  construed,  and  must  be  closely  pursued, 
and  the  authority  given  must  be  exercised  with  proper  care.3 
The  legislature,  instead  of  exercising  this  authority  directly, 
may  authorize  it  to  be  exercised  by  local  or  municipal  author- 
ities.* An  act  of  the  legislature  legalizing,  for  the  time  being, 
encroachments  on  the  public  streets,  may  be  repealed  at  pleas- 
ure— being  a  mere  revocable  license — unless  something  was 
done  or  suffered  in  consideration  of  the  act  so  as  to  invest  it 
with  the  qualities  of  a  contract.* 

*.  Leavenworth,  1  Dillon  C.  C.  R.  393,  1871 ;  Litchfield  v.  Vernon,  41 N.  Y. 
123,  1869 ;  Metropolitan  Board  of  Health  v.  Heiser,  37  N.  Y.  661,  672;  Rail- 
road Company  U.Philadelphia,  47  Pa.  St.  314;  lb.  329. 

1  Same  authorities.  Angell  on  Highways,  Sec.  237 ;  Baptist  Church  v. 
Railroad  Company,  6  Barb.  213 ;  Clinton  v.  Railroad  Company,  24  Iowa, 
455. 

2  Angell  on  Highways,  Sec.  237 ;  Hughes  v.  Railroad  Company,  2  Rh.  Is. 
493 ;  Turnpike  Company  v.  Railroad  Company,  2  Harr.  (N.  J.)  314.  In  vir- 
tue of  its  authority  over  highways  and  over  streets,  which  are,  in  effect, 
highways,  the  legislature  may  establish  a  turnpike  gate  in  the  streets  of  a  city. 
But  as  such  a  privilege  would  embarrass  public  trade  and  convenience,  the 
intention  of  the  legislature  must  be  plainly  expressed:  Stormfeltz  v.  Turn- 
pike Company,  13  Pa.  St.  555,  1850. 

3  Infra,  Sees.  538-578. 

4  Reading  v.  Commonwealth,  11  Pa.  St.  196, 1849;  Detroit  s.  Plank  Road 
Company,  12  Mich.  333. 


CH.  XVIII.]  LEGISLATIVE  CONTROL  OVER  STREETS.  508 

§  520.  Obstruction  —  Remedy  of  Public  by  Indictment  and  in 
Equity. —  The  principle  that  streets  and  public  places  belong  to 
the  general,  rather  than  the  local,  public,  is  one  of  great  im- 
portance, and  has  been  sometimes  overlooked  by  the  courts. 
Because  they  are  public,  whether  the  technical  fee  be  in  the 
adjoining  owner,  in  the  original  proprietor,  or  in  the  munici- 
pality in  trust  for  the  public  use,  any  unauthorized  obstruction 
of  the  public  enjoyment  is  an  indictable  nuisance.1  And  the 
proper  officer  of  the  commonwealth  may  proceed,  in  the  name 
of  the  public,  by  bill  in  equity,  for  an  injunction  or  relief,  or 
by  other  appropriate  action  or  proceedings,  to  vindicate  the 

1  State  v.  Atkinson,  24  Vt.  448,  1852;  State  u.  Wilkinson,  2  Vt.  480;  Com- 
monwealth v.  Rush,  14  Pa.  St.  186, 1850;  Heckerman  v.  Hummel,  19  Pa.  St. 
64,  1852;  Mayor  v.  Gravier,  5  Mart.  (La.)  N.  S.  662;  Herberts.  Benson,  2  La. 
An.  770, 1847 ;  Reading  v.  Commonwealth,  1  Jones  (Pa.),  196 ;  Runyon  v. 
Bordine,  2  Green  (N.  J.),  472,  1834;  Smith  v.  State,  3  Zabr.  (N.  J.)  712;  S.  C. 
ib.  130,  1852;  Davis  v.  Bangor,  42  Maine;  522;  State  v.  Cincinnati  Gas  Com- 
pany, 18  Ohio  St.  268,  1868;  People  v.  Jackson,  7  Mich.  432;  People  v.  Car- 
penter, 2  Doug.  (Mich.)  273;  Attorney  General  v.  Heishon,  18  N.  J.  Eq.  410, 
1867. 

A  railroad  company  is  indictable  for  a  nuisance,  if,  without  authority,  it 
erects  and  continues  a  building  in  a  public  highway  or  street :  State  v.  Rail- 
road Company,  3  Zabr.  (N.J.)  360,  1852;  Milhau  v.  Sharp,  27  N.  Y.  611,  625. 
Where  a  private  person  takes  possession  of  a  public  common  or  square,  or 
encloses  it,  or  otherwise  wholly  excludes  the  public,  such  act  is  ipso  facto 
a  nuisance,  and  the  court  should  so  charge  the  jury  as  a  matter  of  law.  And 
it  is  no  defence  that  the  public  inconvenience  was  more  than  counterbal- 
anced by  the  public  benefit :  State  v.  Woodward  (indictment  for  enclosing 
public  common),  23  Vt.  92, 1850;  State  v.  Atkinson,  24  ifi.448.  Rex  v.  Ward, 
31  Eng.  Com.  Law,  180;  4  Ad.  &  El.  384,  settled  and  put  at  rest  this  princi- 
ple in  England.  A  public  common  may,  in  such  case,  be  described  as  a 
public  highway:  2  Chitty  Crim.  Law,  389;  States.  Atkinson,  24  Vt.  448. 

Where  a  defendant  is  indicted  and  convicted  for  erecting  a  building 
which  encroaches  upon  a  public  street,  the  proper  judgment  is  that  the  nui- 
sance be  abated,  and  that  the  defendant  pay  a  fine :  Smith  v.  State,  3  Zabr. 
(N.  J.)  712, 1852.  "This  judgment,"  said  the  learned  reporter,  who  was  one 
of  the  counsel  in  the  case,  "is  according  to  the  old  and  well  settled  authori- 
ties {citing  them).  The  form  of  entry,  framed  from  Basted' s  Entries,  441,  was 
as  follows:  'Therefore,  it  is  considered,  that  the  nuisance  aforesaid  be 
wholly  removed  and  abated,  and  that  the  walls,  erections,  and  buildings, 
abovementioned,  be  taken  away  and  removed,  and  that  the  aforesaid  com- 
mon and  public  highway  be  opened  to  its  right  and  lawful  width,  as  it  was 
until  the  erection  of  said  nuisance,  at  the  proper  costs  and  expenses  of  the 
said  defendant;  and  that  he  do  pay  a  fine  of  five  dollars,'  &c:"  State  v. 
Railroad  Company,  3  Zabr.  360. 


501  MUNICIPAL    CORPORATIONS.  [CH.  XVIII. 

rights  of  the  public  against  encroachment  or  denial  by  individ- 
uals.1 So  where,  by  its  charter  or  constituent '  act,  a  munici- 
pality has  the  usual  control  and  supervision  of  its  streets  and 
public  places,  it  may,  in  its  corporate  name,  institute  judicial 
proceedings  to  prevent  or  remove  obstructions  thereon.2 

§  521.  Obstructions  —  Liability  of  Author  of  Obstruction  — 
Remedy. —  The  king  cannot  license  the  erection  or  commission 
of  a  nuisance ; 3  nor  in  this  country  can  a  municipal  corporation 
do  so  by  virtue  of  any  implied  or  general  powers.  A  building, 
or  other  structure  of  a  like  nature,  erected  upon  a  street  with- 
out the  sanction  of  the  legislature,  is  a  nuisance,  andNthe  local 
corporate  authorities  of  a  place  cannot  give  a  valid  permission 
thus  to  occupy  streets  without  express  power  to  this  end  con- 
ferred upon  them  by  charter  or  statute.4     The  usual  powers  to 

1  People  ii.  Vanderbilt,  26  N.  Y.  287;  Same  v.  Same,  28  ib.  396;  State  «. 
Mobile,  5  Port.  (Ala.)  279,  1837;  Moyamensing  Com.  v.  Long,  1  Par.  (Pa.) 
145;  Pittsburg  v.  Scott,  1  Barr  (Pa.),  309;  Commonwealth  v.  Eush,  14 Pa.  St. 
186,  1850;  Heckerman  v.  Hummel,  19  ib.  64,  1852;  Columbus  v.  Jacques,  30 
Geo.  506.  If  fact  of  encroachment  is  disputed  and  doubtful,  it  should  be 
settled  at  law;  if  the  bill  be  retained,  an  issue  may  be  directed  to  try  the 
fact:  Attorney  General  v.  Heishon,  18  N.  J.  Eq.  410,  1867. 

2  Pittsburg  v.  Scott,  1  Barr  (Pa.),  309;  Mankato  v.  Willard,  13  Minn.  13; 
Winona  v.  Huff,  11  Minn.  119 ;  Dummer  v.  Jersey  City,  1  Spencer  (N.  J.), 
86,1843;  Herbert  v.  Benson,  a  La.  An.  770;  Barclays.  Howell's  Lessee,  6 
Pet.  507;  Watertown  v.  Cowen,  4  Paige,  510;  Dubuque  v.  Maloney,  9  Iowa, 
450,  460,  per  Stockton,  J.,  arguendo. 

Bight  of  corporation  to  file  bill  to  restrain  execution  sale  of  lots  and 
squares  dedicated  to  educational,  religious,  and  public  uses,  affirmed  by  a 
majority  of  the  court  in  Cox  v.  Griffin,  18  Geo.  728,  1855.  See  M.  E.  Church 
v.  Hoboken,  33  N.  J.  (Law)  13, 1868.  It  has  been  held  in  Louisiana  that  a 
municipal  corporation,  without  the  institution  of  any  judicial  proceedings, 
may  pull  down  and  remove  houses  and  obstructions  in  the  public  streets, 
and  is  not  liable  to  the  owner  therefor:  Daublin  v.  Mayor,  &c.  1  Martin 
(La.),  O.'S.  184;  N.  S.  100.    And  see  Herbert  v.  Benson,  2  La.  An.  770,  1847. 

3  Viner  Abr.  Nuisance,  F. 

-  Flemingsburg  v.  Wilson,  1  Bush  (Ky.),  203;  Attorney  General  v. 
Heishon,  18  N.  J.  Eq.  410,  1867;  Stetson  v.  Faxon,  19  Pick.  147, 1837;  Com- 
monwealth v.  Rush,  14  Pa.  St.  186,  1850 ;  State  v.  Railroad  Company,  3  Zabr. 
360, 1852;  Columbus  v.  Jacques,  30  Geo.  506;  State  v.  Mobile,  5  Port.  (Ala.) 
279. 

Any  continuous  obstruction  of  a  public  highway  or  street,  not  authorized  by 
competent  legal  authority,  is  a  public  nuisance :  Per  Denio,  C.  J.,  in  Davis 
«.  Mayor,  &c.  of  New  York,  506,  1856— the  horse  railway  case  relating  to 
Broadway. 


CH.  XVIII.J  CONTROL  OVEE  STREETS.  505 

regulate  and  control  streets  has  even  been  held  not  to  author- 
ize the  municipal  authorities  to  allow  them  to  be  encroached 
upon  by  the  adjoining  owner,  by  erections  made  for  his  exclu- 
sive use  and  advantage,  such  as  parches  extending  into  the 
streets,   or  flights  of  stairs  leading  from   the  ground  to  the 

The  erection  of  a  market  house  in  the  center  of  a  public  street,  rendering, 
as  it  does,  the  highway  less  commodious,  is  a  nuisance,  which  may  be  pre- 
vented by  a  bill  in  equity :  State  v.  Mobile,  5  Port.  (Ala.)  279,  1837;  S.  P. 
Columbus  v,  Jacques,  30  Geo.  506, 1860;  Ketchum  v.  Buffalo,  14  N.  Y.  374, 
per  Wright,  J.    Ante,  Sec.  316,  p.  324. 

A  purpresture  or  permanent  encroachment  by  the  adjoining  owner  is 
in  law,  a  nuisance,  and  the  public  have  a  remedy  by  indictment  or  in  equity : 
Smith  v.  State,  3  Zabr.  (N.  J.)  712;  lb.  130;  Moyamensing  Com.  v.  Long,  1 
Par.  (Pa.)  145;  State  v.  Railroad  Company,  3  Zabr.  360;  Attorney  General 
v.  Heishon,  18  N.  J.  Eq.  410. 

Openings  made  and  left  in  streets  or  sidewalks  are  nuisances :  Beatty  v. 
Gilmore,  16  Pa.  St.  463;  Bunyon  v.  Bordine,  2  Green  (N.  J.),  472,  1834; 
Scammon,  v.  Chicago,  25  111.  424.  Infra,  Sees.  553,  554;  post,  Chap.  XXIII. 

It  is  a  public  nuisance,  and  indictable  at  common  law,  to  erect  a  stall  for 
the  public  sale  of  articles  on  the  street  or  pavement,  without  authority  from 
the  municipal  corporation;  the  owner  of  the  adjoining  premises  can  confer 
no  such  authority:  Commonwealth  v.  Wentworth,  Bright.  (Pa.)  318. 

Respecting  nuisances  upon  streets  and  highways,  Mr.  Justice  Appleton 
says :  "  But  nuisances  may  obviously  be  committed  upon  a  highway  by  its 
unlawful  use,  for  which  those  committing  may  be  liable  civilly  to  such  as 
may  suffer  therefrom  special  damage,  and  be  punished  criminally,  as  there- 
by annoying  the  traveling  public  generally."  Where  the  charter  of  a  town 
gives  it  power  to  abate  nuisances,  the  use  of  this  term  refers  to  the  general 
law  to  determine  what  acts  or  things  are  such.  In  relation  to  streets  and 
highways,  "  the  carrying  an '  unreasonable  weight  with  an  unusual  num- 
ber of  horses  (Rex  v.  Egerly,  3  Salk.  183) ;  the  driving  a  carriage  through 
crowded  streets  with  dangerous  speed  (United  States  v.  Hart,  Pet.  [Circuit 
Court]  390) ;  the  selling  by  a  constable,  at  auction,  in  the  public  thorough- 
fares (Commonwealth  v.  Millman,  13  Serg.  &  Rawle,  408) ;  the  placing  at  a 
window  the  effigy  of  a  bishop,  labelled, ■'  Spiritual  Broker,'  thereby  drawing 
crowds  to  the  shop  (Rex  v.  Carlisle,  3  Carr.  &  P.  636) ;  the  keeping  coaches 
at  a  stand  in  the  street,  awaiting  customers  (Rex  v.  Cross,  3  Campb.  326 — see 
Davis  v.  City  of  Bangor,  42  Maine,  522) ;  the  loading  and  unloading  of  wag- 
ons in  the  street  (Rex  v.  Russell,  6  East,  427) ;  the  congregating  of  carts  for 
the  reception  of  slops  from  the  distilleries  (People  v.  Cunningham,  1  Denio, 
524) ;  the  collecting  crowds  in  the  streets  by  using  violent  and  indecent 
language  to  those  passing  in  the  street,  thereby  obstructing  their  free  pass- 
age (Baker  v.  Commonwealth,  19  Pa.  St.  412) ;  have  severally  been  held 
nuisances,  as  annoying  the  whole  community,  and  incommoding  and  en- 
dangering the  traveling  public:"  Per  Appleton,  J.,  in  Davis  v.  Bangor, 
supra. 

64 


5    (">  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

u  ier  stories  of  buildings  .standing  on  the  line  of  the  streets.1 
'i  <■  ;  party  so  erecting  or  maintaining  a  nuisance  upon  a  public 
>■  v  et,  alley,  or  place,  is  liable  to  the  adjoining  owner  or  other 
•>  '.  ion  who  suffers  special  damage  therefrom.2 

■.':  -322.  As  to  the  rigid  to  relief  in  equity,  it  may  be  considered 
•■  .  led,  that  a  party  entitled  to  a  right  of  way  over  a  street  may 
,,  ■  protected  in  the  enjoyment  thereof  by  restraining  the  erec- 
:■  -\  of  obstructions  thereon:  but  the  mere  allegation  of  irre- 
-,,!.'  !ial  mischief  from  the  acts  complained  of  is  insufficient;  facts 
;:•.,  .t  be  stated  to  show  that  the  apprehension  of  injury  is  well 
•;'    ;:ided.3     Individaal  owners  of  lots  adjacent  a.  public  square, 

1   I'cople  v.  Carpenter,  2  Doug.  (Mich.)  273,  1849.    Chief  Justice  Whipple, 
:  i     as  ease,  denies  that  such  a  use  of  the  streets  can  be  authorized  by  the 
lature,  since  it  would  destroy  the  vested  rights  of  property  owners 
i  •  •    t  the  dedication ;  but  this  is  an  extreme  view. 

tetson  v.  Faxon,  19  Pick.  147;  Hall  v.  McCaughey,  51  Pa.  St.  43. 

'  .'lint  adjoining  owner  must  show  to  maintain  case:  Abbott  v.  Mills,  3  Vt. 

.'".     :    McLaughlin  (.'.Railroad  Company,  5  Rich.  (South  Car.)  Law,  583; 

■/on  v.  Bordine,  2  Green  (N.  J.),  472,  holding  that  where  a  ditch  was 

.  ,  q  an  alley  in  front  of  the  plaintiff's  lot,  trespass  on  the  case  was  the 

•l'  form  of  action:    Heckman  v.  Hummel,  19  Fa.  St.  64;   Stetson  v. 

:     -•  n,  19  Pick.  147,  and  see  learned  opinion  of  Putnam,  J.,  as  to  what  con- 

;<       :es  special  or  particular  damages:  Haynes  v.  Thomas,  7  Ind.  38;  Black 

-    ':  ilroad  Company,  58  Pa.  St.  249. 

"'liere  the  municipal  corporation  does  not  own  an  absolute  estate,  but 
!  '  .property  —  as,  for  example,  a  public  square — in  trust  for  the  use  of 
inhabitants,  the  right  of  adjoining  lot  owners  is  such  that  without 
• '  ■  •  consent  the  legislature  cannot  authorize  the  corporation  to  change 
''■  ■  haracter  of  the  dedication,  as,  for  example,  to  make  a  lease  of  it  for 
;■'  ''.y-nine  years,  and  to  apply  the  avails  to  the  improvement  of  the  land- 
Le  Clercq-u.  Gallipolis,  7  Ohio,  part  1,  218,  1835;  Haynes  v.  Thomas,  7 
!  .      ''>8.    See  ante,  Chap.  XV.  on  Dedication,  Sees.  512-515. 

'.oman  v.  Strauss  (obstructing  alley  by  railroad  track),  10  Md.  89,  1856; 
'.i'  ..  tiv.  Flannigan,  1  Md.  525,  1852;  Amelung  v.  Seekamp,  9  Gill  &  J.  468; 
..  le  v.  Vanderbilt,  26  N.  Y.  287;  Same  v.  Same,  28  ib.  396;  Davis  v.  May- 
Kern.  526;  Milhau  v.  Sharp,  27  N.  Y.  611,  1863. 

.  j  Supreme  Court  of  Illinois  holds  the  strict  doctrine  that,  ordinarily, 
(:.  ,  /  will  not  entertain  jurisdiction  of  a  bill  where  one  citizen  claims  that 
ier  has  erected  buildings  in  the  public  streets,  and  seeks  their  abate- 
as  a  nuisance.  To  justify  the  interposition  of  equity  in  such  cases,  it 
...  .  .1  appear  that  the  remedy  at  law  is,  for  some  reason,  insufficient: 
:  >  ing  v.  Aurora,  40  111.  481,  1866.  And  such  is  the  view  in  New  Jersey : 
.'i. :';  ;e  v.  Railroad  Company,  20  N.  J.  Eq.  435;  Railroad  Company  o.  Prud- 
u  j  .,  ib.  530, 1869.    Compare,  Bechtel  v.  Carslake,  3  Stockt.  Ch.  500. 


CH.  XVIII. J  CONTROL  OVER  STREETS. —  REMEDY.  fid? 

the  value  of  which  is  affected  by  the  dedication,  have  sr    i 
rights  and  interests  that  they  may  maiutain  a  bill  in  equitv  ■  . 
enforce  the  trust  or  to  restrain  the  appropriation  of  a  pul.  ; 
square  by  the  original  proprietors,  or  by  others,  to  their  p. 
vat'j  use,  or  to  any  use  inconsistent  with  the  purpose  for  will,  .i 
it  was  dedicated.1 

The  author  prefers  the  view  taken  of  this  subject,  in  Whiter.  Flannig  ■•, 
above  cited,  where  the  court,  having  regard  to  the  nature  and  uses  o 
street  in  a  populous  place,  and  considering  any  obstruction  which  der. 
the  exercise  of  the  right  to  use  it  as  working  irreparable  mischief  to  .     • 
street  as  a  street,  sustained  the  equity  jurisdiction  ;  butto  entitle  the  plain     •:' 
to  an  injunction,  the  facts  showing  the  special  injury,  the  situation  of  .     . 
property,  &c,  should  be  stated:     Elwell  v.  Greenwood,  26  Iowa,  377,  l.';  ■ 
Mayor  v.  Franklin,  12  Geo.  239,  1852;  People  v.  Vanderbilt,  26  N.  Y.  I 
Milhau  v.  Sharp,  27  N.  Y.  611,  625,  1863;    Cooper  v.  Alden,  Hawing.  > 
(Mich.)  72;  Railroad  Company  v.  Shiels,  33  Geo.  601;  Bechtelu.  Carslak;     , 
Stockt.  Ch.  500. 

Several  distinct  owners  cannot  join  in  a  bill :   Henchman  v.  Railr ..    \ 
Company,  17  N.  J.  Eq.  (2  C.  E.  Green)  75. 

A  lot  owner  has  no  right  to  raise  or  lower  the  sidewalk  or  street  in  fi\>  , . 
of  him,  when  built  to  an  established  grade,  without  the  consent  of  the  ni 
nicipal  corporation  having  control  of  this  matter ;  and  an  adjoining  lot  o . 
er,  or,  it  seems,  any  other  citizen  having  the  right  to  use  the  streets,  m     , 
under  the  laws  of  Louisiana,  without  proving  actual  damage,  enjoin  s.     , 
alteration :  Dudley  v.  Tilton,  14  La.  An.  283,  1859. 

1  Le  Clercq  v.  Gallipolis,  7   Ohio,  part  1,  218,  1835;  approved,  Huber 
Gazley,  18  Ohio,  18,  27,  1849;   Brown  v.  Manning,  6  Ohio,  298,  305,  16.... 
These  cases,  distinguished  from  Smith  v.  Hueston,  ib.  101,  in  which  it  v. 
ruled  that  individual  lot  owners  around  a,  square  conveyed  to  the  com.  •■ 
for  "the  use  of  public  county  buildings,"  including  a  court  house,  have  n  ' 
such  special  interest  as  will  enable  them  to  maintain  a  bill  to  enjoin  .     ■ 
county  authorities  from  leasing  portions  of  fee  square  to  individuals,  . ,  . 
court  saying:   "If  the  rights  of  the  county  are  violated  or  threatened,  :.■• 
dress  must  be  sought  in  the  name  of  the  county  or  its  acknowledj:. 
-agents."    See  Chapman  v.  Gordon,  29  Geo.  250;  Indianapolis  v.  Cro.iw.   . 
Ind.  9;   Hayne<  v.  Thomas,  7  Ind.  38;   Rowan  v.  Portland,  8  B.  Mon.  L     ; 
Cook  v.  Burlington,  30  Iowa,  94,  1870;  Rutherford  v.  Taylor,  38  Mo.  315. 

"It  has  been  so  often  aud  uniformly  held  by  the  Supreme  Court  of  Lo. 
isiana,  that  public  places  within  the  limits  of  a  corporation  cannot  be  : 
propriated  to  private  use,  and  that  individual  corporators,  as  well  an  i     - 
officers  of  the  corporation  [and  the  corporation  in  its  own  name],  have  ■..<.■ 
right  to  prevent  such  appropriation  and  to  sue  for  the  demolition  and  r  - 
moval  of  buildings  erected  on  them  by  individuals,  that  the  question  <    :: 
no  longer  be  considered  an  open  one:"  Per  Host,  J.    Herbert  v.  Benson, 
La.  An.  770,  1847.     In  this  case  the  court  sustained  the  action  of  the  plai.. 
tiff  seeking  to  abate  as  a  nuisance  a  warehouse  erected  by  the  defenda:.. 


508  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

§  523.  Obstruction — Remedy  of  Corporation — Ejectment. —  A 
municipal  corporation  entitled  to  the  possession  and  control  of 
streets  and  public  places,  may,  in  its  corporate  name,  recover  the 
same  in  ejectment.  Where  it  possesses  the  fee,  although  in  trust 
for  public  uses,  there  are  no  technical  obstacles  in  the  way  of 
maintaining  such  an  action  against  the  adjoining  proprietor  or 
whoever  may  wrongfully  intrude  upon,  occupy,  or  detain  the 
property.  But  where  the  adjoining  proprietor  retains  the  fee, 
the  courts  have  overcome  the  technical  difficulty  by  regarding 
the  right  to  the  possession,  use,  and  control  of  the  property  by 
the  municipality  as  a  legal,  and  not  a  mere  equitable,  right.1 

on  the  bank  of  a  river  within  the  corporate  li  mits  and  in  front  of  the 
plaintiff's  house.  Mayor,  &c.  ■».  Gravier,  5  Mart.  (La.)  N.  S.  662,  also  holds 
that  any  inhabitant  has  this  right.  It  has  been  held  that  no  one  has  a 
right  to  occupy  the  street  in  front  of  another's  house  to  carry  on  a  trade  or 
business,  and  the  adjoining  owner  may,  if  necessary,  use  force  to  remove 
one  who  so  occupies  the  street ;  therefore,  where  a  cabman  refused  to  drive 
away  his  cab  from  in  front  of  a  hotel,  and  was  removed  by  a  policeman,  at 
the  request  of  the  owner  of  the  hotel,  the  policeman  was  not  guilty  of  an 
assault:    Vandersmith's  Case,  10  Pa.  Law  J.  523. 

As  to  rights  of  adjoining  owner:  Nelson  v.  Godfrey,  12  111.  22,  23;  Indian- 
apolis v.  Croas,  7  Ind.  9;  lb.  38;  Milhau  v.  Sharp,  27  N.  Y.  611 ;  Cooper  v. 
Alden,  Harring.  Ch.  (Mich.)  72;  Alden  v.  Pinney,  12  Fla.  348;  Price  v. 
Thompson,  48  Mo.  363. 

In  Kansas  it  is  held,  that  the  mere  fact  that  private  lots  fronting  upon 
public  grounds  are  thereby  increased  in  value,  does  not  create  a  trust 
therein  which  the  owners  of  such  lots  can  enforce  in  equity.  But  that 
where  the  owners  of  lands  dedicate  a  portion  to  public  uses  as  parks,  or 
otherwise,  and  after  such  dedication  sell  and  convey  lots  in  the  remaining 
portion,  fronting  on  such  public  grounds,  to  others,  who  erect  lasting  and 
valuable  improvemens  therein,  a  trust  is  created  therein  which  may  be 
enforced  in  equity  by  those  lot  owners:  County  Commissioners  v.  Lathrop, 
Supreme  Court,  Kansas,  1872.     Ante,  Chap.  XVII.  on  Dedication,  Sec.  506. 

1  Dummer  v.  Jersey  City  ("market  ground"),  1  Spencer  (N.  J.),  86,  1843; 
Winona  v.  Huff  ("public  square"),  11  Minn.  119,  1866;  Klinkener  v.  School 
District,  1  Jones  (Pa.),  444;  Hannibal  v.  Draper  ("church  ground"),  15  Mo. 
634,  1852;  Commissioners  D.Boyd  ("town  commons"),  1  Ire.  (Law)  194, 
1840;  M.  E.  Church  v.  Hoboken  (ejectment  by  city  for  public  "square"),  33 
N.  J.  Law,  13,  1868.  Where  a  corporation  has  the  legal  title  to  the  soil  of 
the  commons  or  public  streets,  it  may  maintain  ejectment  to  recover  the 
possession  thereof:  Savannah  v.  Steamboat  Company,  R.  M.  Charlt.  (Geo.) 
342, 1830.  Law,  J.,  expressed,  arguendo,  the  opinion,  that  where  the  public 
or  corporation  have  an  easement  only,  and  not  the  fee,  the  remedy  for  a, 
violation  of  the  right  is  not  by  private  action,  but  by  public  prosecution. 


CH.  XVIII.]  CONTROL  OVER  STREETS. —  REMEDY.  509 

§  524.  Where  the  public  acquire  only  the.  use,  and  the  fee  remains 
in  the  original  proprietor  or  abutter,  the  latter  is  considered 
the  owner  of  the  soil  for  all  pm-poses  not  inconsistent  with  the 
public  rights,  and  may  maintain  actions  accordingly.  Thus  it 
has  been  held  that  he  may  maintain  ejectment  against  an  indi- 
vidual who,  without  lawful  authority,  erects  a  private  build- 
ing upon  a  public  square  under  a  lease  from  the  local 
authorities,  these  having  no  power  to  authorize  such  a  use. 
The  recovery  is,  of  course,  subject  to  the  public  easement.  It 
does  not  fall  within  the  plan  ol  this  work  to  treat  at. length  of 
the  rights  of  action  of  the  original  proprietor  or  adjoining  own- 
er, but  they  will  be  found  discussed  in  the  cases  and  authori- 
ties cited  below..  We  remark  only  with  respect  to  streets  and 
public  places  in  cities,  that  ejectment  by  the  adjoining  owner 
seems  to  be  a  singularly  inapt  remedy  for  an  illegal  use  or 
occupation  thereof.1 

1  Pomeroy  v.  Mills  (public  square),  3  Vt.  279,  1830;  Boiling  D.Petersburg, 
3  Rand.  (Va.)  563,  1825;  Warwick  v.  Mayor,  15  Gratt.  (Va.)  528,1860; 
Woodruff  v.  Neal,  28  Conn.  168;  Cooper  v.  Smith,  9  Serg.  &  Rawle,  26; 
Stites  v.  Curtis,  4  Day,  328 ;  Peck  v.  Smith,  1  Conn.  103 ;  2  Smith  Lead.  Cas. 
184,  185 ;  Angell  on  Highways,  Chap.  VII. ;  Bissell  v.  Railroad  Company, 
23  N.  Y.  61 ;  Sherman  v.  McKeon,  38  N.  Y.  266. 

In  Massachusetts,  the  adjacent  proprietor  owns  to  the  middle  of  the  street, 
subject  to  the  public  easement :  Boston  v.  Richardson,  13  Allen,  152,  153 ; 
White  v.  Godfrey,  97  Mass.  472;  Bliss  v.  Ball,  99  ib.  597;  S.  P.  Bissell  v. 
Railroad  Company,  23  N.  Y.  61 ;  Railroad  Company  v.  Elevator  Company,. 
50  Pa.  St.  499.  And  may  recover  in  trespass  for  destruction  of  shade  trees- 
in  the  street  in  front  of  his  lot :  Bliss  v.  Ball,  99  Mass.  597,  1 868 ;  White  v. 
Godfrey,  97  Mass.  472. 

In  Carpenter  v.  The  Oswego,  &c.  Railroad  Company,  24  K  Y.  655,  1861,  it 
was  decided  that  ejectment  would  lie  in  favor  of  the  owner  of  the  fee  in  land 
subject  to  a  public  easement;  for  example,  a  street,  against  a  party  appro- 
priating it  to  private  occupation,  such  as  the  laying  down  therein,  by  a  rail- 
road company,  of  its  track  and  rails.  And  it  was  thus  held,  notwithstand- 
ing it  was  argued  that  no  judgment  which  the  plaintiff  could  obtain  would 
give  him  a  right  to  the  premises,  as  the  publio  would  still  be  entitled  to  use- 
them  as  a  street :  S.  P.  Wager  v.  Troy,  &c.  Railroad  Company,  25  N.  Y.  526, 
1862;  Sherman  v.  McKeon,  38  N.  Y.  266,  1868.  In  Cincinnati  v.  White,  6 
Pet.  431,  it  was  declared  to  be  the  opinion  of  the  court,  that  where  the  ded- 
ication is  complete,  and  the  rights  of  the  public  have  attached,  the  owner 
of  the  soil,  though  retaining  the  naked  legal  title,  cannot  recover  in  eject- 
«ment.  This  reason,  given  for  this  ruling,  has  much  force.  It  is,  that  eject- 
ment is  a  possessory  action,  and  that  whatever  deprives  the  plaintiff  of  the 
right  of  possession  will  deprive  him  of  the  remedy  by  ejectment.  Exclusive 


510  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

§  525.  Where,  however,  thejee  or  legal  tide,  passes  from  the 
original  proprietor,  as  in  some  of  the  states  it  is  declared  it 
shall  in  statutory  dedications,  and  in  land  acquired  for  streets 
and  public  purposes  by  the  exercise  of  the  right  of  eminent 
domain,  such  proprietor  or  the  adjoining  owner  cannot  main- 
tain an  action  for  injuries  to  the  soil,  or  ejectment,  but  he  still 
has  his  remedy  for  any  special  injury  to  his  rights  by  the  un- 
authorized action  of  others.1 

§  526.  Ejectment —  Effect  of  Judgment  or  Decree  Against  Mu- 
nicipal Corporation. —  It  fairly  results  from  the  view  taken  in 
this  chapter  of  the  nature  of  the  rights. of  the  public  at  large 

possession  of  the  land  cannot,  it  was  said,  consistently' with  the  rights  of 
the  public,  be  delivered  to  the  plaintiff  in  execution  of  a  judgment  of  re- 
covery. The  doctrine  of  Lord  Mansfield,  in  Goodtitle  v.  Alker,  1  Burr. 
143,  "that  ejectment  will  lie  by  the  owner  of  the  soil  for  land  which  is  subject 
to  a  passage  over  it  as  the  king's  highway,"  was  regarded  by  the  court,  or 
at  least  by  the  judge  delivering  the  opinion,  in  Cincinnati  v.  White,  6  Pet. 
431,  442,  as  unsound,  although  it  was  not  denied  that  trespass  would  lie,  as  a 
recovery  in  damages  would  not  be  inconsistent  with  the  public  right.  See 
American  note  to  Dovaston  v.  Payne,  2  Smith  Lead.  Cases,  185,  where  this 
subject  is  discussed:  Redfield  v.  Railroad  Company,  25  Barb.  54 ;  Hunter  v. 
Sandy  Hill,  6  Hill,  407.  That  trespass  would  lie  in  such  a  case  is  well  estab- 
lished :  Wager  v.  Troy  Railroad  Company,  supra,  and  authorities  cited  in 
Mr.  Justice  Sunderland's  opinion,  p.  540.  See,  also,  Mahon  v.  New  York, 
&c.  liiilroad  Company,  M  N.  Y.  058;  Fletcher  v.  Auburn,  &c.  Railroad 
Company,  25  Wend.  402,  1841;  21  Wis.  602;  23  N.  Y.  61. 

Though  the  party  has  a  remedy  at  law  for  the  trespass,  yet  as  the  trespass 
is  of  a  continuing  nature,  he  may  go  into  equity,  have  an  injunction  to 
prevent  a  multiplicity  of  suits,  and  recover  damages  as  incidental  to  this 
relief:  Williams  ».  New  York  Central  Railroad  Company,  16  N.  Y.  97,  111, 
1857. 

1  Canal  Trustees  ».  Haven,  11  111.  554;  Hunter  v.  Middleton,  13  111.  50; 
Mo;-es  v.  Railroad  Company,  21  111.  522;  Protzman  v.  Railroad  Company,  9 
Ind.  467  ;  Railroad  Company  v.  O'Daily,  13Ind.  353;  People  v.  Kerr,  27  N- 
Y.  188  ;  Shurmeier  v.  Railroad  Company,  10  Minn.  82;  affirmed,  7  Wall. 
272;  Cooley,  Const.  Lim.  556,  and  see  note,  The  laying  off  and  recording  a 
town  plat,  or  of  an  addition  thereto  under,  has,  under  the  statute  of  Iowa, 
the  effect  to  vest  in  the  corporation  the  fee  simple  tide  to,  and  exclusive 
right  of,  dominion  over  the  streets  and  alleys  thus  dedicated  to  the  public 
use.  In  such  case  neither  the  original  proprietor  nor  his  grantees  have  the 
right  to  the  subterraneous  disposits  of  coal  within  the  limits  of  such  streets, 
and  the  corporation  may  maintain  an  action  against  him  for  coal  mined  and 
taken  by  him  from  beneath  the  same:  Des  Moines  v.  Hall,  24  Iowa,  234, 
1868.     . 


CH.  XVIII. J  CONTROL  OVER  STREETS.— REMEDY.  511 

in  streets  and  public  places,  that  &  judgment  in  ejectment  by  the 
proprietor  of  land  against  a  city  corporation  where  the  disputed 
question  was  as  to  the  ownership  of  the  soil,  does  not  conclude 
or  affect  the  right  of  the  public  to  the  easement  of  a  street  or 
public  place,  since  the  public  is,  in  ther.3  respects,  represented 
by  the  commonwealth,  and  such  a  judgment  is  res  inter  alios 
acta  as  to  the  public  right.1  In  California,  the  court  went  even 
further  in  protection  of  the  rights  of  the  public,  and  decided 
not  only  that  there  was  no  power  in  the  municipality  to  mort- 
gage property  held  for  the  public  use,  but  that  a  decree  of  fore- 
closure of  such  a  mortgage  does  not  estop  the  public  or  even 
the  municipality,  the  decree  and  mortgage  being  equally  mill 
and  ineffectual.2  , 

§  527.  Vacation  of  Streets. —  The  plenary  power  of  the  legis- 
lature over  streets  and  highways  is  such  that  it  may,  in  the 
absence  of  special  constitutional  restriction,  vacate  or  discon- 
tinue them,  or  invest  municipal  corporations  with  this  author- 
ity.3    A  municipal  corporation,  under  the  authority  conferred 

1  Warwick  v.  Mayo,  Mayor,  15  Gratt.  ( Va  )  528,  1830 ;  Boiling  v.  Peters 
burg,  3  Rand.  (Va.)  563.  On  the  ground,  which  is  hardly  tenable,  that  the 
municipal  authorities,  as  respects  public  squares  and  streets,  represent  not 
only  the  corporation  but  also  the  public,  Mr.  Justice  Rnst  was  of  opinion 
that  a  final  judgment  against  a  corporation  was  also  a  judgment  against  the 
public,  and  conclusive  upon  individuals :  Xiques  v.  Bujac,  7  La.  An.  498, 
]  852,  per  Rost,  J.  But  in  the  same  case,  Mr.  Justice  Preston  expressed  the 
opinion,  which  is  believed  to  be  the  correct  one,  that  a  judgment  against 
the  right  of  a  city  to  public  property  will  not  bar  an  individual  not  a  party 
to  the  suit,  and  who  is  interested  in  maintaining  the  dedication. 

2  Branham  v.  San  Jose,  24  Cal.  585,  1864. 

3  Gray  v.  Iowa  Land  Company,  26  Iowa,,  387,  1868 ;  Kimball  v.  Kenosha, 
4  Wis.  321;  Stuber's  Road,  28  Pa  St.  199;  Commissioners  v.  Gas  Company, 
12  Pa.  St.  318 ;  Trenton  Railroad  Case,  6  Whart.  25 ;  Jersey  City  v.  State,  ] 
Vroom  (N.  J.),  521 ;  Bailey  i.  Railroad  Company,  4  Harring.  (Del.)  389, 1846  ; 
Henchman  v.  Detroit,  9  Mich.  103.  But  in  Indiana  the  principle  was  re- 
garded as  sound,  that  in  addition  to  the  public,  easement,  and  distinct  from 
it,  there  exists  in  favor  of  the  owner  of  a  lot  upon  the  street,  and  as  appur- 
tenant to  it,  a  private  right  to  use  the  street  and  to  insist  that  the  street  shall 
forever  be  kept  open  to  its  full  width.  And  the  court  considered  the  con- 
clusion to  follow  from  this  principle,  that  the  legislature  cannot,  without 
the  consent  of  the  lot  owner,  or  compensating  him  for  the  damage,  vacate 
afstreet,  or  any  part  of  it,  in  front  of  or  adjoining  the  lot:  Haynes  v.  Thom- 
as, 7  Ind.  38,  1855;  Indianapolis  v.  Croas,  ib.  9;  Tate  v.  Railroad  Company, 
ib.  470,  483.    But  as  to  this  point,  quxre. 


512  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

in  its  charter,  "to  locate  and  establish  streets  and  alleys,  and 
vacate  the  same,"  may  constitutionally  order  the  vacation  of 
a  street;  and  this  power,  when  exercised  with  due  regard 
to  individual  rights,  will  not  be  restrained  at  the  instance  of  a 
property  owner  claiming  that  he  is  interested  in  keeping  open 
the  streets  dedicated  to  the  public.1 

§  528.  Prescription  and  Adverse  Possession. —  Statute  of  Limit- 
ations.—  Concerning  rights  and  remedies  with  respect  to  streets 
and  public  places,  an  interesting  topic  remains  on  which  the 
cases  are  not  agreed,  and  that  is,  whether  the  rights  of  the 
municipality  or  of  the  public  may  be  lost  by  non-user,  or  ad- 
verse possession.  There  may  be  instances  where  the  non-user 
has  continued  so  long,  and  private  rights  have  grown  up  of 
such  a  nature  as  to  amount  to  an  equitable  estoppel,  or  an  estop- 
pel in  pais,  on  the  public,  which  the  courts  will  enforce  upon 
principles  of  justice;  but  such  cases  are  exceptional  in  their 
character,  and  it  would  perhaps  be  going  too  far  to  say  that 
the  courts  have  distinctly  established  such  a  principle.2  The 
state  of  the  law,  aside  from  statutory  enactment,  can  best  be 
exhibited  by  referring  to  the  leading  adjudications. 

§  529.  The  doctrine  is  well  understood,  that  to  the  sover- 
eign power,  the  maxim,  "nullum  tern-pus  occurrit  regi,"  applies, 
and  that  the  United  States  and  the  several  States  are  not,  with- 
out express  words,  bound  by  statutes  of  limitation.3  Although 
municipal  corporations  are  considered  as  public  agencies,  exer- 

1  Gray  v.  Iowa  Land  Company,  26  Iowa,  387,  1868 ;  distinguished  from 
Warren  v.  Lyons,  22  Iowa,  351.  Upon  the  discontinuance  of  an  easement  in 
a  public  highway,  the  freehold,  or  soil,  in  general,  reverts  to  the  owner  of 
the  land:  Harris  v.  Elliott,  10  Pet.  (U.  S.)  25,  1836.  As"  to  streets  in  town: 
Barclay  v.  Howell's  Lessee,  6  Pet.  498,  513,  per  McLean,  J.    Ante,  Sec.  515. 

2  Lane  v.  Kennedy,  13  Ohio  St.  42,  49, 1861,  per  Peck,  J.;  3  Kent  Com.  451, 
note,  where  Chancellor  Kent,  noticing  the  case  of  New  Orleans  v.  United 
States,  10  Pet.  662,  suggests  that  there  may  be  such  non-user  by  the  public, 
and  such  adverse  claims  by  the  original  owner,  as  may,  in  time,  bar  the 
public,  "for  in  this  country,"  he  adds,  "time  may  [by  legislation]  create  a 
bar  to  the  sovereign's  right."    De  Vaux  v.  Detroit,  Harring.  Ch.  (Mich.)  98. 

3  United  States  v.  Hoar,  2  Mason,  C.  C.  R.  314;  Johnson  v.  Irwin,  3  Serg. 
&  Rawle  (Pa.),  291;  Lessee  v.  Saunders,  1  Bay  (South  Car.),  30;  People  v. 
Gilbert,  18  Johns.  227;  United  States  v.  Kirkpatrick,  9  Wheat.  (U.  S.)  735; 
Angell  on  Limitations,  36. 


CH.  XVIII.]  'CONTROL  OVER  STREETS. —  REMEDY.  513 

cising,  in  behalf  of  the  state,  public  duties,  there  are  many  cases 
which  hold  that  such  corporations  are  not  exempt  from  the 
operation  of  limitation  statutes,  but  that  such  statutes,  at  least 
as  respects  all  real  and  personal  actions,  run  in  favor  of  and 
against  these  corporations  in  the  same  manner  and  to  the  same 
extent  as  against  natural  persons.1 

1  Lessee,  &c.  of  Cincinnati  v.  First  Presbyterian  Church,  8  Ohio,  298, 1838. 
In  this  case  the  question  was  most  thoroughly  argued  and  examined  by 
able  lawyers,  and  no  cases  precisely  in  point  as  to  municipal  corporations 
were  produced.    The  doctrine  of  the  text  was  distinctly  decided,  and  was 
adhered  to  and  applied  in  the  more  recent  case  of  Cincinnati  v.  Evans,  5 
Ohio  St.  594,  1855.    As  a  result  of  this  doctrine,  these  cases  hold  that  noto- 
rious and  uninterrupted  possession  by  a  private  individual  or  private  cor- 
poration under  a  claim  of  right  of  land  dedicated  to  a  city  for  public  squares 
or  streets  for  the  period  of  the  statutes  of  limitations,  will  bar  the  city  of 
the  claim  for  its  use.    In  Lane  v.  Kennedy,  13  Ohio  St.  42,  1861,  the  prior 
cases  in  that  state  are  noticed,  and  it  was  held  that  a  partial  encroachment, 
by  a  fence,  of  a  surveyed  highway,  was  not,  necessarily,  adverse  to  the 
public,  nor  inconsistent  with  the  easement  of  the  public,  the  court,  by 
Peck,  J.,  observing  that  the  case  was  distinguishable  from  Cincinnati  v. 
Evans,  5  Ohio  St.  594,  and  the  principle  was  adopted  that  where  the  cir- 
cumstances surrounding  the  possession  are  entirely  reconcilable  with  a 
continued  recognition  of  the  ultimate  right  of  the  public,  the  possession  is 
not  adverse.    Referring  to  Cincinnati  v.  Evans,  supra,  in  which  there  was 
an  encroachment  of  a  permanent  character  on  the  street,  the  learned  judge 
just  named  observed :    "That  case  was,  in  this  view  of  it,  rightly  deter- 
mined; but  it  might,  with  equal,  if  not  greater,  propriety,  have  been 
placed  [not  upon  the  statute  of  limitations,  but]  upon  the  ground  of  an 
estoppel  in  pais,  on  the  part  of  the  city  authorities,  the  building  having  been 
located  by  the  city  surveyor  upon  the  lines  previously  established  and  built 
upon."    See  Jersey  City  ».  State,  1  Vroom  (N.  J.),  521, 1863;  Cross  v.  Morris- 
town,  18  N.  J.  Eq.  305, 1867;  Evans  v.  Erie  County,  66  Pa.  St.    In  the  same 
state  it  has  been  still  more  recently  decided,  that  the  use,  by  a  gas  compa- 
ny, of  the  streets  of  a  city  for  twenty  years,  does  not  bar  an  inquiry  by  the 
State  into  the  rightfulness  of  the  use:    State  v.  Cincinnati  Gas  Company,  18 
Ohio  St.  268,  1868.    See,  also,  Philadelphia  v.  Railroad  Company,  58  Pa.  St. 
253.    On  the  general  subject  of  the  application  of  the  statute  of  limitations 
to  municipal  corporations,  see,  also,  Galveston  v.  Menard,  23  Texas,  349, 
408,  1859;  Rowan's  Executors  v.  Portland,  8  B.  Mon.  259;  Alves  v.  Hender- 
son, 16  B.  Mon.,  131,  171,  1855;  Dudley  v.  Frankfort,  12  B.  Mon.  610,617; 
Newport  v.  Taylor,   16  B.  Mon.  699,  806;    Paine  v.  Commissioners,   &c. 
Wright's  Ohio  Rep.  417;   Kelly's  Lessee  v.  Greenfield,  2  Har.  &  McHen. 
(Md.)  132, 137;  North  Hempstead  v.  Hempstead,  2  Wend.  (N.  Y.)  137.  And 
see  Judge  Stover's  argument,  8  Ohio,  304;    St.  Charles  v.  Powell,  22  Mo.  525, 
1856;   Armstrong  v.  Dalton,  4  Dev.  (North  Car.)  568,  1834;   Pella  v.  Scholte, 
24  Iowa,  283;  Bowen  v.  Team,  6  Rich.  (South  Car.)  Law,  298;  State  v.  Pettis, 

65 


514  MUNICIPAL    CORPORATIONS.  [CH.  XVIII. 

§  530.  It  will  be  seen,  on  examination,  that  quite  a  number 
of  the  cases  cited  in  the  last  note  declare  that  the  public  may 
even  lose  their  right  to  streets  and  public  places  by  long  con- 
tinued adverse  occupation  by  private  individuals.  But  on  the 
other  hand,  it  has  been  repeatedly  held  by  the  Supreme  Court 
of  Pennsylvania,  "that  the  lapse  of  time  furnishes  no  defence 
for  an  encroachment  on  a  public  right,"  such  as  an  obstruction 
on  a  street  or  public  square.  The  view  of  the  court  is,  in  sub- 
stance, this:  Streets  and  public  squares  are  dedicated  or 
acquired  for  the  public  use,  and  not  alone  for  that  of  the  people 
of  the  city,  the  corporation  being  the  mere  trustee  for  the 
public;  that  erections  by  private  persons,  on  property  thus 
dedicated  or  acquired,  cannot  be  authorized  by  the  original 
proprietor,  nor  by  the  city  corporation,  and  can  be  authorized 
only  by  act  of  the  legislature ;  that  unauthorized  obstructions 
and  erections  thereon  are  public  nuisances,  and  may  be  prose- 
cuted by  indictment  or  other  proceedings,  on  behalf  of  the 
public,  and  that  no  length  of  time,  unless  there  be  a  limit  by 
statute,  will  legalize  a  public  nuisance,  or  bar  the  right  of  the 
public  to  proceed  by  indictment  to  abate  it,  and  that  in  the 
absence  of  a  grant  shown  from  a  competent  source,  no  pre- 
sumption from  mere  lapse  of  time  can  be  made  to  support  a 
nuisance  which  is  an  encroachment  on  the  public  right.  In 
one  case,  Mr.  Justice  Sergeant  well  observes:  " These  princi- 
ples pervade  the  laws  of  the  most  enlightened  nations,  as  well 
as  our  own  code,  and  are  essential  to  the  protection  of  pub- 
lic rights,  which  would  be  gradually  frittered  away  if  the  want 
of  complaint  or  prosecution  gave  the  party  a  right.  Individu-' 
als  may  reasonably  be  held  to  a  limited  period  to  enforce  their 
rights  against  adverse  occupants,  because  they  have  an  interest 
sufficient  to  make  them  vigilant.  But  in  public  rights  of 
property,  each  individual  feels  but  a  slight  interest,  and  rather 

7W.390;  Barnwell  v.  McGrath,  I  McMullen  (South  Car.),  174;  County  v. 
Brinthall,  29  Pa.  St.  38;  Magee  v.  Commonwealth,  46  Pa.  St.  358,  where  the 
statute  of  limitations  was  held  not  applicable  to  assessments  for  local  im- 
provements. But  see  Evans  v.  Erie  County,  66  Pa.  St.  The  statute  of  lim- 
itations does  not,  in  any  event,  begin  to  run  against  the  inhabitants  of  a 
town  until  they  are  incorporated,  and  thus  capacitated  to  sue:  Eeillyw. 
Chouquette,  18  Mo.  220, 1853. 


CH.  XVIII.]  CONTROL  OVER  STREETS. —  REMEDY.  515 

tolerates  even  a  manifest  encroachment  than  seeks  a  dispute  to 
set  it  right."  l 

1  Per  Sergeant,  J.,  Commonwealth  ».  Alburger,  1  Whart.  (Pa.)  469,  488. 
See,  also,  Commonwealth  v.  McDonald  (indictment  for  "actual  obstruc- 
tion," etc.),  16  Serg.  &  Bawle,  390,  1827;  Barter  v.  Commonwealth  (own- 
ership of  wells  in  streets),  3  Pa.  (Penrose  &  Watts)  253,  1831.  In  this 
case,  Gibson,  C.  J.,  remarks:  "The  title  of  the  corporation  [of  Lancaster]  to 
the  soil  [of  the  streets]  for  uses  that  conduce  to  the  public  enjoyment  and 
convenience,  is  paramount  and  exclusive;  and  no  private  occupancy,  for 
whatever  time,  and  whether  adverse  or  by  permission,  can  vest  a  title  inconsist- 
ent with  it.  The  case  of  the  Commonwealth  v.  McDonald,  by  which  this 
salutary  principle  has  been  conclusively  established,  is  founded  in  the 
purest  reason,  and  fortified  by  the  strongest  authorities : "  lb.  259 ;  Eing  v. 
Schoenberger  (claim  of  ownership  in  public  square),  2  Watts  (Pa.),  23,  1833. 
As  to  title  by  adverse  possession,  compare  with  remarks  of  Gibson,  ■  C.  J., 
above  quoted:  Commonwealth  v.  Alburger  (indictment  for  erecting  church 
in  Franklin  Square,  Philadelphia),  1  Whart.  (Pa.)  469,  1836;  Penny  Pot 
Landing  Case,  16  Pa.  St.  79,  94,  citing  and  re-affirming  the  foregoing  cases. 
Philadelphia  e.  Railroad  Company,  58  Pa.  St.  253.  It  is  a  fair  deduction 
from  the  foregoing  cases,  that  a  prescriptive  right  to  maintain  an  encroach- 
ment upon  the  public  streets  or  squares  cannot  be  set  up  as  against  the 
public,  and  that,  as  against  the  public,  a  title  by  adverse  possession  cannot 
be  acquired  by  individuals.  As  to  private  rights,  the  statute  of  limitations 
runs,  in  Pennsylvania,  against  municipal  corporations:  Evans  v.  Erie 
County,  66  Pa.  St. 

The  doctrine  that  a  right  to  a  portion  of  a  public  street  may  be  acquired 
as  against  the  public  by  prescription  or  adverse  possession,  was  rejected, 
and  characterized  "  eminently  disastrous  to  the  public  interests,"  by  Whelp- 
ley,  J.,  in  Jersey  City  v.  Morris  Canal  Company,  1  Beasl.  (N.  J.)  547,  561, 
denying  the  correctness  of  Knight  v.  Heaton,  22  Vt.  480,  and  similar  cases, 
which  hold  that  the  enclosure  and  occupation  of  land  within  the  limits  of 
a  highway  for  twenty  years  under  a  claim  of  right,  makes  title  in  the  occu- 
pier by  prescription  as  against  the  public:  Smith  v.  State,  3  Zabr.  (N.  J.) 
712,  1852.  It  was  held  in  Simmons  v.  Cornell,  1  Eh.  Is.  519,  that  no  adverse 
possession  and  use  of  a  portion  of  a  highway  by  individuals,  however  long, 
would  give  a  title  as  against  the  state  or  the  public,  as  the  statute  of  limita- 
tion does  not  run  against  them,  because  the  adverse  claim  could  never  have 
had  a  legal  commencement.  But  see  Beardslee  v.  French,  7  Conn.  125, 
where  an  entire  non-user  for  ninety  years  of  the  whole  way,  and  an  exclu- 
sive possession  by  an  individual,  was  held  to  extinguish  the  right  of  the 
public.  Litchfield  v.  Wilmot,  2  Boot,  288.  A  street  was  dedicated  eighty 
feet  in  width,  and  subsequently,  under  proceedings  void  in  law,  twenty 
feet  were  vacated,  leaving  the  street  sixty  feet  wide,  to  which  width  only 
did  the  municipal  authorities  work  it,  and  adjacent  lot  owners  improved 
with  reference  to  its  being  a  sixty  feet  street.  It  was  the  opinion  of  the 
chief  justice  that  the  city,  acting  under  the  mistake  of  supposing  the  pro- 
ceedings to  vacate  to  be  binding  upon  it,  was  not  thereby  estopped  to  insist 
that  the  street  was  eighty  feet  wide:  Jersey  City  v.  State,  1  Vroom  (N.  J.), 
521, 1863;  Cross  v.  Morristown,  18  N.  J.  Eq.  305, 1867. 


516  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

§  531.  In  Louisiana,  also,  it  is  considered,  that  streets, 
levees,  commons,  or  public  grounds,  &c,  are  lands  which  are, 
out  of  commerce,  incapable  of  being  alienated,  and  must  ever 
remain  free  to  the  public.  It  is,  therefore,  held,  that  no  silence 
or  length  of  time  can  deprive  a  public  corporation  of  its  power 
over  public  places;  that  its  inaction  may  give  an  occupier  an 
estate  at  sufr'rance,  but  nothing  more;  and  that  inasmuch  as 
such  property  is  not  susceptible  of  alienation  by  the  corpora- 
tion, no  prescriptive  adverse  right  thereto  can  be  acquired, 
since  prescription  presupposes  a  title  fairly  acquired,  but  not 
now  capable  of  proof.1 

§  532.  In  Illinois,  where  the  statute  of  limitations  protects 
an  actual  possession  of  lands,  under  a  bona  fide  claim  or  color 
of  title,  for  seven  years,  to  the  extent  and  according  to  the  pur- 
port of  the  possessor's  paper  title,  it  is  held  that  this  statute 
does  not  apply  to  a  suit  brought  by  a  municipal  corporation  to 
recover  possession  of  property  which  was  dedicated  to  it  for 
the  use  of  the  public,  since  the  corporation  has  no  power  to 
alien  or  dispose  of  the  property,  and  hence  there  could  be  no 
paper  title  to  be  protected  such  as  the  statute  contemplated. 
Whether  an  adverse  possession  for  twenty  years  would  defeat 
an  action  by  the  corporation,  no  opinion  was  given.2 

1  New  Orleans  v.  Magnon,  4  Martin  (La.),  2,  1815,  815;  S.  P.  Mayor,  &c.  v. 
Maggioli,  4  La.  An.  73,  1849 ;  Ingram  i>.  Police  Jury,  20  La.  An.  226, 1868.  It 
may  be  observed  that  in  neither  of  these  cases  did  the  defendants  show  a 
state  of  facts  of  which  adverse  possession  could  be  fairly  predicated,  or  a 
right  or  title  fairly  acquired.  See,  also,  Delabigarre  v.  Second  Municipality, 
3  La.  An.  230,  237.  Acts  of  city  authorities,  in  ignorance  of  its  rights  and 
prejudicial  to  those  rights  with  respect  to  streets  and  commons,  are  not 
binding  upon  the  corporation:  Lewis  v.  San  Antonio  (Exidos  grant  for 
pasturage,  &c),  7  Texas,  288,  1851 ;  New  Orleans  v.  United  States,  10  Pet.  734. 

As  to  title  against  the  public,  or  a  municipal  corporation,  by  advene  pos- 
session, see,  further,  1  Domat,  492 ;  Henshaw  v.  Hunting,  1  Gray  (Mass.)  203 ; 
Jersey  City  v.  Morris  Canal  Company,  1  Beasl.  (N.  J.)  547 ;  Fox  v.  Hart,  11 
Ohio,  414;  Rowan's  Executors  v.  Portland,  8B.Mon.  232,  259;  Commission- 
ers v.  Taylor,  2  Bay  (South  Car.),  282;  Galveston  v.  Menard,  23  Texas,  349; 
Onstott  v.  Murray,  22  Iowa,  457;  McFarlane  v.  Kerr,  10  Bosw.  (N.  Y.)  249; 
Litchfield  v.  Wilmot,  2  Root  (Conn.),  288;  State  v.  Pettis,  7  Rich.  (South 
Car.)  Law,  390;  Bowen  v.  Team,  6  ib.  298;  Pella  v.  Scholte,  24  Iowa,  283. 

2  Alton  v.  Illinois  Transportation  Company,  12  111.  60;  Turney  v.  Cham- 
berlain (as  to  adverse  possession),  15  111.  271. 


CH.  XVIII.]  CONTROL   OF   HIGHWAYS   AND   ROADS.  517 

§  533.  Upon  consideration,  it  will,  perhaps,  appear  that  the 
following  view  is  correct:  Municipal  corporations,  as  we  have 
seen,  have,  in  some  respects,  a  double  character — one  public, 
the  other  (by  way  of  distinction)  private.  As  respects  property 
not  held  for  public  use,  as  streets,  commons,  &c,  and,  as  res- 
pects contracts  and  rights  of  a  private  nature,  there  is  no 
reason  why  such  corporations  should  not  fall  within  limitation 
statutes,  and  be  affected  by  them.  For  example,  in  an  action 
on  contract  or  for  tort,  a  municipal  corporation  may  plead  or 
have  pleaded  against  it  the  statute  of  limitations.  But  such  a 
corporation  does  not  own  and  cannot  alien  public  streets  or 
places,  and  no  laches  on  its  part  or  on  that  of  its  officers  can 
defeat  the  right  of  the  public  thereto,  yet  there  may  grow  up, 
in  consequence,  private  rights  of  more  persuasive  force  in  the 
particular  case  than  those  of  the  public.  It  will,  perhaps,  be 
found,  that  cases  will  arise  of  such  a  character  that  justice  re- 
quires that  an  equitable  estoppel  shall  be  asserted  even  against 
the  public,  but  if  so,  such  cases  will  form  a  law  unto  them- 
selves, and  do  not  fall  within  the  legal  operation  of  limitation 
enactments.  The  author  cannot  assent  to  the  doctrine,  that  as 
respects  public  rights,  municipal  corporations  are  within  ordi- 
nary limitation  statutes.  It  is  unsafe  to  recognize  such  a 
principle.  But  there  is  no  danger  in  recognizing  the  princi- 
ple of  an  estoppel  in  pais  as  applicable  to  such  cases,  as  this 
leaves  the  courts  to  decide  the  question,  not  by  the  mere  lapse 
of  time,  but  by  all  the  circumstances  of  the  case,  to  hold  the 
public  estopped  or  not,  as  right  and  justice  may  require. 

The  Establishment  and  Control  of  Ordinary  Highways  and.  Roads 
Within  Municipal  Limits. 

§  534.  Throughout  the  United  States,  township,  county,  or 
other  local  authorities,  have  the  general  control  and  supervi- 
sion over  the  ordinary  public  highways,  while  in  incorporated 
towns  and  cities  this  power,  as  respects  streets,  is  usually  con- 
ferred upon  the  corporate  authorities.  "When  the  jurisdiction 
and  power  in  the  one  is  excluded  by  the  charters  of  the  other, 
has  given  rise  to  nice  and  difficult  questions  of  construction, 
depending  upon  the  supposed  intention  of  the  legislature  to  be 
gathered  from  the  whole  course  of  legislation  on  the  subject  in 


518  MUNICIPAL   CORPORATIONS.  [CH.  XVIII; 

the  particular  state,  and  with  reference  to  the  particular  muni- 
cipality. A  few  illustrations,  drawn  from  actual  decisions, 
may  be  useful;  and  first,  of  cases  where  it  has  been  held  that 
the  municipal  authority  was  exclusive  of  the  authority  con- 
ferred upon  other  officers  or  tribunals  by  the  general  statutes. 

§  535.  In  Tennessee  it  was  held,  in  an  early  case,  that  the 
County  Court  had  no  power  to  lay  off  roads  through  incorpo- 
rated towns :  Because,  1.  The  act  of  assembly  authorizing 
them  to  lay  off  such  roads  within  a  county  as  they  shall  deem 
proper,  does  not  literally  extend  to  streets.  2.  Every  town 
supposes  lots  and  streets,  and  its  erection  into  a  town  by  the 
legislature  creates  a  state  of  private  interest  distinct  from  the 
body  of  the  county,  and  this  should  be  regulated  by  the  towns- 
people. 3.  The  magistrates  composing  the  County  Court  are 
from  the  country,  at  least  most  of  them,  and  consequently  can- 
not be  expected  to  know  the  interest  of  the  corporation,  and 
if  they  did  they  might  feel  inimical  to  it.1  So,  by  statute  in 
Texas,  the  counties  had  general  authority  to  keep  in  repair  the 
public  highways  therein,  and  an  incorporated  town,  by  its 
charter,  had  the  right  to  improve  its  streets  and  alleys;  and 
the  question  arose,  whether  the  county  or  town  authorities  bad 
power  to  keep  in  repair  streets  or  highways  within  the  corpo- 
rate limits  of  the  town.  The  court,  to  prevent  conflict  of  juris- 
diction, held  that  the  town  had  exclusive  control  of  the  streets 
and  highways  therein.2  So  it  is  held,  in  Indiana,  that  the  gen- 
eral statutes  of  the  state  in  relation  to  "public  highways,"  do 
not  apply  to  the  streets  and  alleys  of  an  incorporated  town  or 
city.3 

1  Cowan's  Case,  1  Overton  (Term.),  311,  1808.  "A  highway  is  not  a  street, 
either  technically  or  in  common  parlance;  so  judicially  settled:"  Indian- 
apolis v.  Croas,  7  Ind.  9;  Lafayette  v.  Jenners,  10  ib.  74,  79.  But  a  street  is 
of  course  a  highway,  in  the  sense  that  it  is  free  for  every  person  to  use  it 
for  the  purpose  of  travel,  conforming,  of  course,  to  all  proper  police  regula- 
tions, and  the  right  of  passage  is  one  which  the  municipal  authorities  can- 
not abridge  or  deny:  Bell  v.  Foutch,  21  Iowa,  119,  131,  1866;  Barret  v. 
Brooks,  ib.  144. 

2  State  v.  Jones,  18  Texas,  874,  1857. 

a  Indianapolis  v.  Croas,  7  Ind.  9, 1855.  So,  in  Ne^w  Jersey,  it  is  held,  that 
the  general  road  acts  of  the  state  do  not  apply  to  incorporated  places  hav- 
ing special  power  to  regulate  and  improve  streets:  Cross  v. ;Morristown, 
18  N.  J.  Eq.  305;  State  v.  Morristown,  33  N.  J.  (Law)  57. 


CH.  XVIII.]  CONTROL   OF   HIGHWAYS   AND    ROADS.  519 

§536.  On  the  principle  of  the  foregoing  cases,  it  is  held 
that  a  general  state  law,  authorizing  counties  and  townships  to 
impose  the  burden  of  road  labor  only  on  persons  between 
twenty-one  and  fifty  years  of  age,  does  not  limit  the  express 
charter,  power  of  a  city  to  impose  such  burden  upon  all  persons 
over  twenty-one  years  of  age,  and  hence  it  may  require  persons 
over  fifty  years  of  age  to  perform  road  labor.1 

§  537.  On  the  other  hand,  power,  by  charter,  conferred 
upon  a  city  to  lay  out  new  highways,  and  to  alter,  enlarge,  and 
extend  highways  within  its  limits,  was  held  not  to  divest,  by 
implication  or  implied  repeal,  the  jurisdiction  of  the  County 
Court  over  the  same  subject  given  by  general  statutes.2  So  it 
is  held,  in  Ohio,  that  general  power  being  conferred  upon  the 
commissioners  of  the  county  to  lay  out  and  establish  roads 
within  the  limits  of  the  county,  they  are  thereby  authorized, 
unless  their  authority  is  especially  restricted  in  the  acts  of  in- 
corporation, to  lay  out  and-  establish  county  roads,  whose  termi- 

1  Fox  v.  Rockford,  38  111.  451,  1865.  See  O'Kane  v.  Treat,  25  111.  557,  as  to 
exemption  of  cities  under  charters  from  road  taxes  levied  by  township  and 
county  authorities.  In  general,  the  jurisdiction  of  a  city  or  town  over  its 
streets  is  exclusive,  as  to  road  labor,  of  the  general  laws  of  the  state  relat- 
ing to  public  or  county  roads:  lb.    Ottawa  v.  Walker,  21  111.  605. 

Road  labor  may  be  constitutionally  imposed  by  statute  unless  the  power 
of  the  legislature  be  specially  limited:  Sawyer  v.  Alton,  3  Scam.  (111.)  130; 
Skinner  v.  Hutton,  33  Mo.  244.  See  chapter  on  Taxation,  post.  Until  the 
town,  the  plat  of  which  is  recorded,  becomes  incorporated,  the  streets  are 
under  the  control  of  the  county  authorities,  who  cannot  enlarge  or  diminish 
their  width,  but  may  direct  how  much  thereof  shall  be  worked  or  im- 
proved :  Waugh  v.  Leech,  28  111.  488, 1862.  Streets  need  not  be  recorded  in 
the  county  records:  Townsend  v.  Hoyle,  20  Conn.  1. 

Unless  authorized  by  statute,  a  county  cannot  use  county  funds  to  aid  in 
the  construction  of  toll  bridges,  or  to  aid  a  private  individual  in  the  construc- 
tion of  a  free  bridge:  Colton  v.  Hanchett,  13  111.  615,  1852;  Clarke.  Des 
Moines,  19  Iowa,  198.  In  Iowa,  counties  have  been  held,  under  the  legisla- 
tion of  that  state,  to  have  power  to  aid  in  the  construction  of  free  bridges, 
erected  with  the  sanction  of  the  proper  municipal  authorities,  for  public 
use,  upon  public  lines  of  travel,  within  incorporated  towns  or  cities :  Bell 
v.  Foutch  et  al.  21  Iowa,  119, 1866 ;  Barrett  v.  Brooks,  21  Iowa,  44. 

As  to  liability  in  Iowa  of  county  for  defective  bridges  within  city  limits : 
McCullom  v.  Blackhawk  County,  21  Iowa,  409. 

2  Norwich  v.  Story,  25  Conn.  44, 1856.  Duty  of  repair  held  to  rest  on  the 
town,  and  not  the  city,  the  former  being  made  liable  by  statute  and  the 
latter  not:  Guthrie  v.  New  Haven,  31  Conn.  308. 


520  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

ni  are  wholly  within,  or  which  run  through,  an  incorporated 
town  or  city  —  these  corporations,  unless  expressly  exempted, 
being  subject  to  the  operation  and  control  of  the  general  laws 
of  the  state.1 

Municipal  Power  over  Streets,  and  their  Uses. 

§  538.  .  As  the  highways  of  a  state,  including  streets  in 
cities,  are  under  the  paramount  and  primary  control  of  the 
legislature,  and  as  all  municipal  powers  are  derived  from  the 
legislature,  it  follows  that  the  authority  of  municipalities  over 
streets,  and  the  uses  to  which  they  may  be  put,  depend  en- 
tirely upon  their  charters  or  legislative  enactments  applicable 
to  them.  It  is  usual  in  this  country  for  the  legislature  to  con- 
fer upon  municipal  corporations  very  extensive  powers  in 
respect  to  streets  and  public  ways  within  their  limits,  and  the 
uses  to  which  they  may  be  appropriated.  This  will  be  illus- 
trated everywhere  throughout  the  present  chapter.  The  au- 
thority to  open,  care  for,  regulate,  and  improve  streets,  taken 
in  connection  with  the  other  powers  usually  granted,  gives  to 
municipal  corporations  all  needed  authority  to  keep  the  streets 
free  from  obstructions,  and  to  prevent  improper  use,  and  to  ordain 

1  Wells  o.  McLaughlin,  17  Ohio,  99;  Butman  v.  Fowler,  ib.  101,  1848; 
Swan's  Ohio  Stat.  796.  Municipal  charter  held  not  to  divest  county  author- 
ities of  their  jurisdiction  over  part  of  the  road  lying  within  the  limits  of 
the  town;  Baldwin  v.  Green,  10  Mo.  410.  Under  the  special  act  incorpo- 
rating Bennington,  it  was  held  that  the  trustees  of  the  village  had  not  the 
exclusive  authority  to  lay  out  highways  within  its  limits,  but  that  the  gen- 
eral law  upon  the  subject  was  still  applicable :  Bennington  v.  Smith,  29  Vt. 
(3  Wms.)  254, 1857. 

Further  as  to  power  of  county  or  township  authorities  with  respect  to 
roads  and  highways  within  the  limits  of  incorporated 'towns  and  cities, 
see  Pope  v.  Commissioners,  &c.  12  Rich.  (South  Car.)  Law,  407 ;  Sharrett's 
Boad,  8  Barr  (Pa.),  89;  Eailroad  v.  Duquesne,  46  Pa.  St.  223;  Boad  Case,  14 
Sergeant  &  Rawle  (Pa.),  447 ;  Newville  Boad  Case,  8  Watts  (Pa.),  172;  Boad 
in  Easton,  3  Bawle  (Pa.),  195;  Boad  in  Milton,  40  Pa.  St.  300;  Knowles  v. 
Muscatine,  20  Iowa,  248;  McCullom  v.  Blackhawk  County,  21  Iowa,  409. 

Extent  of  municipal  control  over  turnpike  road  constructed  in  the  streets 
of  a  city :  State  v.  New  Brunswick,  1  Vroom  (N.  J.),  395.  See  State  v.  Ho- 
boken,  ib.  225;  Quinn  v.  Paterson,  3  Dutch.  35 ;  State  v.  Passaic  County,  ib. 
217. 

Power  over  plank  road  in  street:  State  v,  Jersey  City,  2  Dutch.  (N.  J.) 
445;  McKay  v.  Plank  Boad  Company,  2  Mich.  138;  Detroit  v.  Plank  Boad 
Company,  12  Mich.  333.    See  Begina  v.  Cottle,  3  Eng.  Law  &  Eq.  474. 


CH.  XVIII.]  MUNICIPAL    POWER   OVER    STREETS.  521 

ordinances  to  this  end.1  Thus,  a  city  having  "the  care,  super- 
vision, and  control  of  streets,  squares,  and  commons"  within 
its  limits,  may,  by  ordinance,  prohibit  the  appropriation  of 
these  to  private  use,  such  as  sales  by  individuals  at  auction 
thereon,  or  upon  the  sidewalks  or  streets.2 

1  Philadelphia  v.  Railroad  Company,  58  Pa.  St.  253 ;  Commonwealth  t>. 
Brooks,  99  Mass.  434 ;  Dudley  v.  Frankfort,  12  B.  Mon.  610,  617 ;  Mercer  v. 
Railroad  Company,  36  Pa.  St.  99 ;  Railroad  Company  v.  Chenoa,  43  111.  2(J9 ; 
Railroad  Company  v.  Galena  40  111.  344. 

The  power  to  open  new  streets  given  in  a  city  charter  was  held  to  be 
synonymous  with  the  power  to  lay  out  and  establish  streets,  and  not  merely 
to  limit  the  authority  of  the  city  to  opening  streets  already  existing  on  the 
plan  or  plat  of  the  corporation  and  its  additions :  Hannibal  v.  Railroad 
Company,  Supreme  Court  of  Missouri,  March  term,  1872.  Under  such  au- 
thority a  city  may  open  streets  across  the  track  of  existing  railroads  within 
the  city  limits.    lb. 

Power  to  the  common  council  of  a  city,  by  the  charter,  to  adopt  ordi- 
nances "to  prevent  the  cumbering  of  streets,  sidewalks,"  &c,  in  view  of  the 
distinction  recognized  in  the  charter,  and  which  the  legislature  of  Michigan 
had  always  made  between  cumbering  and  obstructing  a  public  way,  and 
encroaching  upon  it,  was  held  to  refer  to  impediments  to  travel  placed  in 
the  open  street,  and  not  to  actual  enclosures  of  a  portion  of  the  street  by 
fences,  or  occupation  by  buildings  :  Grand  Rapids  v.  Hughes,  15  Mich.  54, 
1866.  Power  to  a  city,  by  its  charter,  to  regulate  the  use  of  streets  and  alleys, 
and  to  prevent  and  remove  obstructions  from  them,  contemplates  the  preser- 
vation of  actual  ways  against  nuisances  which  interfere  with  their  accustomed 
use,  and  until  they  have  become  actually  open,  obstructions  thereon,  under 
a  claim  of  title  apparent  on  the  face  of  the  prosecution,  cannot  be  punished 
under  an  ordinance  in  the  municipal  tribunal,  but  the  rights  of  the  parties 
must  be  determined  in  the  public  courts :  Jackson  v.  People,  9  Mich.  Ill, 
1860.  See,  also,  Warwick  v.  Mayo,  15  Gratt.  528.  A  municipal  corporation 
may  cause  surveys  of  streets,  squares,  and  other  public  property  to  be  made, 
and  may  employ  a  surveyor  or  engineer  to  furnish  copies  of  an  original 
map  or  a  new  map  of  the  city  or  town :  People  v.  Flagg,  17  N.  Y.  (3  Smith), 
584, 1858 ;  Randall  «.  Van  Vechten,  19  Johns.  60, 1821. 

Municipal  power  to  regulate  streets  and  sidewalks  includes  the  power  to 
determine  the  width  of  each :  State  v.  Morristown,  33  N.  J.  (Law)  57, 1868. 

*  White  v.  Kent,  11  Ohio  St.  550, 1860.  See,  also,  Shelton  v.  Mobile,  30 
Ala.  540.  Power  of  city  to  remove  nuisances  and  obstructions  on  streets  at 
the  expense  of  the  party  creating  them :  See,  generally,  Hawley  v.  Harrall, 
19  Conn.  142.  As  to  power  of  city  highway  surveyor  and  street  commis- 
sioner over  sidewalks,  see  Noyes  v.  Ward,  19  Conn.  250,  270 ;  Clark  v.  Mc- 
Carthy, 1  Cal.  453.  Power  to  prevent  sidewalks  from  being  obstructed  by 
swine:  Commonwealth  v.  Curtis,  9  Allen,  266.  Relation  of  sidewalk  to 
street:  See  Index, — Taxation  and  Assessment.  Hart  v.  Brooklyn,  36  Barb. 
226.  An  awning  erected  without  municipal  cdnset  may  be  declared  an  un- 
lawful obstruction  of  a  street:  Peduck  v.  Bailey,  12  Gray  (Mass.),  161.  Post, 
Chap.  XXIII. 
66 


522  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

§  539.  So,  authority  to  erect  and  keep  in  repair  bridges  and 
streets,  confers  by  implication  the  power  to  employ  the  means 
necessary  to  that  end,  and  among  these  means  may  be  the 
passage  of  an  ordinance  inflicting  a  fine  for  wilful  or  negligent 
injuries  thereto.  Power  thus  to  protect  the  public  property  of 
the  corporation  could  probably  also  be  derived  from  the  usual 
authority  to  regulate  the  police  of  the  city.1  The. gutters  and 
drains  of  a  city  intended  to  carry  off  surface  water  can  be  used 
by  manufacturers  and  others,  only  by  the  consent,  express  or 
implied,  of  the  local '  government ;  such  use  is  unlawful  if  it 
result  in  a  nuisance,  and  may  be  prohibited  by  the  municipal 
authorities.2 

§  540.  Power  to  make  such  ordinances  "respecting  streets, 
wagons,  carts,  drays,  &c,  as  to  the  council  shall  appear  necessary 
for  the  security,  welfare,  and  convenience  of  the  city,"  authorizes 
an  ordinance  regulating  the  weight  which  wagons  and  other 
vehicles  employed  in  the  transportation  of  goods,  wares,  or 
produce  of  any  kind,  shall  carry  through  the  streets  of  the  city, 
In  thus  holding,  the  court  admitted  that  "an  ordinance  which 
would  operate  as  a  total  exclusion  of  the  right  of  the  citizen  to 
pass  over  the  streets  of  the  city  with  his  loaded  wagon  and 
team  would  be  unreasonable  and  void,  as  against  common 
right ;  but  the  ordinance  in  question  merely  regulates  the  exer- 
cise and  enjoyment  of  the  right,  and  is  valid."3 

§  541.  Public  Nature  of  Streets. — Whether  the  fee  of  the 
street  be  in  the  municipality  in  trust  for  the  public  use,  or  in 
the  adjoining  proprietor,  it  is,  in  either  case,  of  the  essence  of 
the  street  that  it  is  public,  and  hence,  as  we  shall  hereafter- 
show,  under  the  paramount  control  of  the  legislature  as  the 
representative  of  the  public.  Streets  do  not  belong  to  the  city 
or  town  within  which  they  are  situated,  even  although  acquired 

1  Korah  v.  Ottawa,  32  111.  121, 18.63.  See  Hooksett  v.  Amoskeag  &c.  Com- 
pany, 44  N,  H.  105.  As  to  right  of  town  to  maintain  case  against  wrong- 
doers for  injuries  to  the  public  highways  and  bridges ;  right  of  street  officer 
to  prevent  injury  to  street :  Clark  v.  McCarthy,  1  Cal.  453. 

*  Municipality  v.  Gas  Light  Company,  5  La.  An.  439,  1850.  Post,  Chap. 
XXIII. 

3  Nagle  v.  Augusta,  5  Ga.  546>  1848.  Power  to  require  license  from  persons, 
using  streets  with  heavy  loads:  Qartside  v.  East  St.  Louis,  43  111,  47. 


CH.  XVIII.]  MUNICIPAL   POWER   OVER   STREETS.  523 

by  the  exercise  of  the  right  of  eminent  domain,  and  the 
damages  paid  out  of  the  corporation  treasury.  The  authority 
of  municipalities  over  streets  they  derive,  as  they  derive  all 
their  other  powers,  from  the  legislature — from  charter  or 
statute.1  The  fundamental  idea  of  a  street  is  not  only  that  it 
is  public,  but  public  for  all  purposes  of  free  and  unobstructed 
passage,  which  is  its  chief  and  primary,  but  by  no  means,  sole, 
use. 

|  542\  Power  to  Improve,  and  Graduate. — That  the  use  of  the' 
Streets  for  travel  may  be  made  safe  and  convenient,  the  legis- 
lature usually  confers  upon  the  municipal  authorities  the  power, 
in  express  terms,  to  graduate  and  improve  them,  and  supplies  the 
means  to  carry  the  power  into  effect  by  requiring  the  inhabi- 
tants to  perform  labor  upon  the  streets  or  to  pay  specific  taxes 
for  that  purpose,  or  taxes  that  may  be  so  appropriated  by  the 
corporation.  In  another  place  will  be  considered  more  fully 
the  liability  of  the  corporation  growing  out  of  this  power,  in 
respect  to  maintaining  the  streets  in  a.  safe  condition  for  travel. 
It  will,  however,  be  proper  here  to  notice  the  nature  of  the 
power  to  grade  and  improve  streets,  as  it  has  been  judi- 
cially ascertained  and  settled.  A  leading,  case  on  this  subject 
is  that  of  G-oszler  v.  Georgetown,  decided  by  the  Supreme 
Court  of  the  United  States.2  By  its  constituent  act,  the  cor- 
poration of  Georgetown  had  "full  power  to  make  such  by-laws 
and  ordinances  for  the  graduation  and  levelling  of  streets  as 
they  may  judge  necessary  for  the  benefit  of  the  town."  Pur- 
suant to  this  authority,  the  corporation  passed  an  ordinance 
for  the  graduation  of  certain  streets,  the  first  section  of  which 
appointed  commissioners  for  that  purpose.  The  second  sec- 
tion of  the  ordinance  was  as  follows:  "Be  it  ordained,  that  the 
said  level  and  graduation,  when  signed  by  the  commissioners 
'  and  returned  to  the  clerk  of  this  corporation,  shall  be  forever 
thereafter  considered  as  the  true  graduation  of  the  streets  so 
graduated,  and  be  binding  upon  this  corporation,  and  all  other 
persons  whatever,  and  be  forever  thereafter  regarded  in  making 

'  Barter  v.  Commonwealth,  3  Pa.  (Pen.  &  W.)  253;  Commonwealth  v. 
Kailroad  Company,  27  Pa.  St.  339 ;  Allegheny  v.  Railroad  Company,  26  Pa. 
St.  355. 

2  GoMer v.  Georgetown,  6" Wheat.  (U.S.)  593,1821. 


524  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

improvements  upon  said  streets. "  The  plaintiff  made  improve- 
ments according  to  this  grade,  and  afterwards  the  corporation 
passed  another  ordinance  directing  the  grade  to  be  changed  by 
being  lowered,  to  the  plaintiff's  injury.  The  plaintiff's  bill  for  . 
an  injunction  was  dimissed,  the  court  holding:  1.  That  the 
power  to  graduate  given  by  the  legislature  was  not  exhausted 
by  its  first  exercise,  but  was  a  continuing  one :  the  power  is 
given  to  the  town  to  legislate  on  the  subject,  to  pass  as  many 
by-laws  relating  thereto  as  the  corporation  "may  judge  neces- 
sary for  the  benefit  of  the  town."  2.  The  second  section  of 
the  ordinance  (above  quoted)  was  not  in  the  nature  of  a  com- 
pact, and  therefore  was  not  final  and  irrepealable.  In  deciding 
this  point,  Mr.  Chief  Justice  Marshall  says :  "  But  it  cannot  be 
disguised  that  a  promise  is  held  forth  (by  the  second  section 
of  the  ordinance)  to  all  who  should  build  on  the  graduated 
streets,  that  the  graduation  should  be  unalterable.  The  court, 
however,  feels  great  difficulty  in  saying  that  this  ordinance  can 
operate  as  a  perpetual  restraint  on  the  corporation.  When  a 
government  enters  into  a  contract,  there  is  no  doubt  of  its 
power  to  bind  itself  to  any  extent  not  prohibited  by  its  consti- 
tution. A  corporation  can  make  such  contracts  only  as  are 
allowed  by  the  acts  of  incorporation.  The  power  of  this  body 
to  make  a  contract  which  should  so  operate  as  to  bind  its  legislative 
capacities  forever  thereafter,  and  disable  it  from  enacting  a  by-law, 
which  the  legislature  enables  it  to  enact,  may  well  be  ques- 
tioned. We  rather  think  that  the  corporation  cannot  abridge 
its  own  legislative  power." ' 

§  543.  That  the  power  to  grade  and  improve  streets,  like  other 
legislative  powers,  is  a  continuing  one,  unless  the  contrary  be  in- 
dicated, has  been  frequently  decided  in  both  the  national  and 
state  courts.  It  may,  therefore,  be  exercised  from  time  to 
time,  as  the  wants  of  the  municipal  corporation  may  require. 
Of  the  necessity  or  expediency  of  its  exercise,  the  governing 
body  of  the  corporation,  and  not  the  courts,  are  the  judges.2 

1  Goszler  v.  Georgetown,  6  Wheat.  597.     Ante,  Sees.  60,  61. 

2  Smith  v.  Washington,  20  How.  (U.  S.)  135;  O'Connor  v.  Pittsburg,  18 
Pa.  St.  187;  Macy  v.  Indianapolis,  17  Ind.  267,  1861;  Furman  Street,  17 
Wend.  649;  Hoffman  v.  St.  Louis,  15  Mo,  651,  1852;  Markham  v.  Mayor,  23 
Geo.  402, 1857;  Gall  v.  Cincinnati,  18  Ohio  St.  563;  Plum  v.  Canal  Company, 
2  Stockt.  256.  Contra,  under  charter:  Oakley  v.  Williamsburgh,  6  Paige, 
262;  Goodall  v.  Milwaukee,  5  Wis.  32.    Ante,  Sec.  62. 


CH.  XVIII.]  MUNICIPAL    POWER    OVER    STREETS.  525 

And  the  law  is  also  settled,  as  we  shall  have  occasion  hereafter 
more  fully  to  illustrate,  that,  unless  expressly  so  declared  by 
charter  or  statute,  a  municipal  corporation  is  not  liable  to 
property  owners  for  the  consequential  damages  necessarily  re- 
sulting from  either  establishing  a  grade  or  changing  an  estab- 
lished grade  of  streets,  although  improvements  were  made  in 
conformity  with  the  first  grade.1  If  the  legislature  gives  a  rem- 
edy in  such  cases,  that  remedy  alone  can  be  pursued.2 

§  544.  Municipal  control  over  uses. — The  power  of  the  public, 
or  of  the  municipal  authorities  representing  by  delegated 
authority  the  public,  over  streets  is  not  confined  to  their  use 
for  the  sole  purpose  of  travel,  but  they  may  be  used  for  many 
other  purposes  required  by  the  public  convenience.  In  the 
author's  judgment,  the  uses  to  which  streets  in  towns  and  cities 
may  legitimately  be  put  are  greater  and  more  numerous  than 
with  respect  to  ordinary  roads  or  highways  in  the  country. 
With  reference  to  these,  all  the  public  requires  is  the  easement 
of  passage  and  its  incidents,  and  hence  the  owner  of  the  soil 
parts  with  this  use  only,  retaining  the  soil,  and,  by  virtue  of  this 
ownership,  entitled,  except  for  the  purposes  of  repairs,  to  the 
earth  and  the  timber  and  grass  growing  thereon,  and  to  all 
minerals,  quarries,  and  springs  below  the  surface;  and  he  may 
maintain  actions  against  those  who  obstruct  the  road  or  inter- 
fere with  his  rights  therein.3    But  with  respect  to  streets  in 

1  Same  authorities  J  Taylor  v.  St.  Louis,  14  Mo.  20, 1851 ;  Hovey  v.  Mayo, 
43  Maine,  322,  1857;  Callender  v.  Marsh,  1  Pick.  416;  Brown  v.  Lowell,  8 
Met.  172;  St.  Louis  v.  Gurno,  12  Mo.  414, 1849;  Hooker  v.  New  Haven,  &c. 
Company,  14  Conn.  146;  Green  v.  Beading,  9  Watts  (Pa.),  382;  Mayor,  &c. 
v.  Randolph,  4  Watts  &  Serg.  (Pa.)  516;  Humes  v.  Mayor,  &c.  1  Humph. 
(Tenn.)  403,  1839;  Lafayette  v.  Bush,  19  Ind.  326;  Creal  v.  Keokuk,  4  G. 
Greene  (Iowa),  47.  In  Kentucky,  the  right  to  change  the  grade  without 
liability  to  pay  damages  is  not  absolute  and  unqualified:  Louisville  v. 
Rolling  Mill  Company,  3  Bush,  416, 1867.  A  change  of  grade  is  not  shown 
to  be  illegal  by  an  allegation  that  it  was  made  "without  any  necessity 
therefor,"  because  the  council  of  the  city  are  the  judges  of  the  necessity  of 
the  change :  Macy  v.  Indianapolis,  17  Ind.  267,  1861.  See,  further,  Chap. 
XXIII.  post. 

2  Hovey  v.  Mayo,  43  Maine,  322,  332;  AndoVer,  &c.  v.  Gould,  6  Mass.  40; 
Boston  v.  Shaw,  1  Met.  130. 

3  Barclay  v.  Howell's  Lessee,  6  Pet.  498,  512,  per  McLean,  J. ;  Bliss  v.  Ball, 
99  Mass.  597,  1868;  White  v.  Godfrey,  97  Mass.  472;  Boston  v.  Richardson, 
13  Allen,  152, 153.;  Stackpole  v.  Healey,  16  Mass.  33;  Peck  v.  Smith,  1  Conn. 


526  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

populous  places,  the  public  convenience  requires  more  than 
the  mere  right  to  pass  over  and  upon  them.  They  may  "need 
to  be  graded  and  brought  to  a  level;  and  therefore  the  public 
or  municipal  authorities  may  not  only  change  the  surface^  but 
cut  down  trees,  dig  up  the  earth,  and  may  use  it  in  improving 
the  street  or  elsewhere,  and  may  make  culverts,  drains,  and 
sewers  upon  or  under  the  surface.  Whether  the  municipal  cor- 
poration holds  the  fee  of  the  street  or  not,  the  true  doctrine  is 
that  the  municipal  'authorities  may,  under  the  usual  powers 
given  them,  do  all  acts  appropriate  or  incidental  to  the  bene- 
ficial use  of  the  street  by  the  public,  of  which,  when  not  dotae 
in  an  improper  and  negligent  manner,  the  adjoining  fee  holder 
cannot  complain.1 

103;  Adams  v.  Rivers,  11  Barb.  393;  Griffin  v.  Martin,  7  Barb.-  298;  Jackson 
V.  Hathaway,  15  Johns.  447;  Webber  v.  Railroad  Company,  2  Met.  149; 
Louisville  v.  Bank,  3  B.  Mon.  138,  158.    Ante,  Sees,  492,  496. 

In  Cincinnati  v.  White,  6  Pet.  431,  the  Supreme  Court  observes  that  "all 
public  dedications  must  be  considered  with  reference  to  the1  use  for  which 
they  are  made ;  and  streets  in  a  town  or  city  may  require  a  more  enlarged 
right  over  the  use  of  the  land,  in  order  to  carry  into  effect  the  purposes  in- 
tended, than  may  be  necessary  for  an  appropriation  of  a  highway  in  the 
country."  This  is  manifestly  true,  and  that  is  too  narrow  a  view  of  the 
nature  of  a  Street  which  holds  that  the  public  gets  nothing  but  a  mere  right 
of  way,  and  that  the  adjoining  owner  retains  as  against  the  public*  every 
other  right;  the  public  must  be  taken  to  get  every  right  necessary  to  the 
beneficial  use  and  enjoyment  of  the1  street,  and  these  rights  in  the  streets 
of  a  populous  place/  are  much  more  enlarged  and  various  than  with  respect 
to  ordinary  highways.  Some  of  the  cases  have  overlooked  this  difference, 
and  applied  too  strictly  the  settled  rules  of  the  latter,  in  all  their  extent,  to 
the  formers    See,  ante.  Sec.  496. 

1  Boston  v.  Richardson,  13  Allen  (Mass.),  146,  159,  1866,  per  Oray,  J.; 
West  it.  Bancroft,  32  Vt.  367, 1859,  per  Pierpont,  J. ;  Barter  v.  Commonwealth, 
3  Pa.  (Pen;  &  W.)  253;  Kelsey  v.  King,  32  Barb.  410.  In  a  case  in  Georgia, 
where  it  Was  held  that  the  owner  only,  parted  with,  and  the  city  only  ac- 
quired, a  right  of  way,  it  was  decided,  but,  in  the  author's  judgment,  erro- 
neously, that  stone  within  the  limits  of  the  street,  which  had  to  be  removed 
in  order  to  level  and  make  the  street  passable,  belonged  to  the  adjoining 
owner  as  part  of  the  soil,  and  not  to  the  city  as  the  owner  of  the  right  of 
way ;  and  the  latter  could  not,  it  was  further  held,  use  the  rock  that  might 
result  from  the  process  of  levelling  for  macadamizing  or  other  street  im- 
provements, and  the  corporation  was  enjoined  from  so  doing:  Smith  v. 
Rome,  19  Geo.  89, 1855.  But  in  Maine  it  is  held  that  a  corporation  which, 
by  its  charter,  has  power  to  repair  and  grade  streets,  may  make  such  repairs 
and  do  such  grading  by  authorizing  others,  at  their  own  expense  and  under 
the  direction  of  the  street  commissioner,  to  take  the  materials  from  the 
street  for  tbmr  own  private  use:  Hovey  v.  Mayo,  43  Maine.  322. 1857. 


CH.  XVIII.]  MUNICIPAL   POWER   OVER   STREETS.  527 

§  545.  Thus,  although  an  easement  only  be  acquired  by  the 
public,  the  municipal  or  local  authorities  may  build  a  reservoir 
or  cistern  in  a  street,  to  retain  water  with  which  to  sprinkle 
streets  or  extinguish  fires.1  In  a  case  in  Iowa,  occurring  in  a 
city  where  the  fee  of  the  soil  in  the  street  was  in  the  adjoining 
proprietor,  subject  to  the  public  easement,  it  appeared  that  the 
pity  corporation  built  a  cistern  in  the  street  underneath  the 
surface,  near  the  line  of  the  defendant's  lot,  and  that  subse- 
quently the  defendant  erected  a  building  on  his  lot  on  the  line 
of  the  street,  and  in  excavating  for  his  cellar  and  foundation 
wall,  and  in  taking  the  earth  from  under  the  sidewalk  in  the 
street,  occasioned  the  destruction  of  the  cistern,  for  which  an 
action  was  brought  against  him  by  the  city;  and  it  was  held 
that  the  action  could  not  be  maintained,  because  the  fee  of  the 
street  being  in  the  defendant,  subject  to  the  public  easement, 
the  city  had  no  right,  without  his  consent,  to  construct  the  cis- 
tern. The  court  observe  that,  "  subject  to  the  public  easement, 
the  owner  of  the  adjoining  lots  is  the  absolute  owner  of  the 
soil  of  the  streets,  and  retains  his  exclusive  right  in  all  mines, 
quarries,  springs  of  water,  timber,  and  earth,  for  every  purpose 
not  inconsistent  with  the  public  right  of  way." 2  So  far  as  this 
case  affirms  that  a  municipal  corporation  cannot  rightfully  con- 
struct a  public  cistern,  for  municipal  uses,  in  a  public  street, 
without  the  consent  of  the  abutter  holding  the  fee,  it  is  directly 

Although  the  fee  of  the  streets  of  a  city  may  be  in  the  adjoining  proprie- 
tor, subject  to  the  public  easement,  yet  the  city,  by  virtue  of  its  general 
authority  over  streets,  may  cause  sewers  to  be  made  therein,  and  the  owner 
is  not  entitled  to  have  his  damages  assessed  as  for  a  new  use  or  servitude : 
Cone  v.  Hartford,  28  Conn.  363, 1859.  In  this  case  the  right  of  the  city  to 
make  common  sewers  under  the  street  was  deduced  from  and  regarded  as 
an.  incident  to  its  express  and  general  authority  to  make  and  maintain 
highways  and  streets.  S.  P.  Fisher  v.  Harrisburg,  2  Grant  Cas.  (Pa.)  291, 
1854.    Post,  Chap.  XIX. 

1  West  v.  Bancroft,  32  Vt.  367, 1859. 

2  Dubuque  v.  Maloney,  9  Iowa,  450,  461,  1859,  per  Stockton,  J.  '  In  towns 
and  cities  platted  under  the  code  of  Iowa,  the  Jot  owners  do  not  hold  the 
fee  to  the  middle  of  the  stret,  and  have  no  other  interest  in  the  streets  ex- 
cept a  right  of  way  common  to  the  whole  public  Dubuque  and  Keokuk 
are  exceptions  in  this  respect:  Milburn  v.  Cedar  Kapids,  12  Iowa,  246;  ib. 
261;  Haightfl.  Keokuk,  4  Iowa,  199;  Dubuque  v.  Maloney,  supra;  Dubuque 
v.  Benson,  23  Iowa,  248;  Des  Moines  %  Hall,  24  Iowa,  234.  See  chapter  on 
Dedication,  ante,  Sees.  492,  496. 


528  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

opposed  to  the  case  from  Vermont  last  cited,  and  to  the  sound 
and  necessary  principle  above  laid  down,  namely,  that  the  city 
corporation  may  make  every  use  of  a  street  which  reasonably 
conduces  to  the  public  convenience  and  enjoyment.  It  will 
never  do  to  hold  that  a  municipality  invested  with  the  control 
of  streets  and  charged  with  the  duty  of  preserving  the  public 
health,  promoting  the  public  convenience,  and  of  making  pro- 
vision to  extinguish  fires,  may  not,  if  it  deems  it  expedient, 
construct  a  subterranean  reservoir  or  sewer  in  the  middle  of  a 
street  without  the  assent  of  the  opposite  lot  owners.1 

§  546.  In  Great  Britain  express  legislative  sanction  is 
necessary  to  warrant  the  laying  down  of  gas  pipes  in  the  public 
highways ; 2  and  so  in  this  country  it  is  also  considered  that 
the  right  to  the  use  of  the  public  streets  of  a  city  by  a  gas  com- 
pany for  the  purpose  of  laying  down  its  pipes,  is  a  franchise 
which  can  be  granted  only  by  the  legislature,  or  some  local  or 
municipal  authority  empowered  to  confer  it.3 

§  547.  A  general  grant  of  power  in  the  charter  of  a  city  to 
cause  it  to  be  lighted  with  gas,  while  it  carries  with  it,  by  im- 
plication, all  such  powers  as  are  clearly  necessary  for  the 
proper  and  convenient  exercise  of  the  authority  expressly  con- 
ferred, does  not  authorize  the  city  council  to  grant  to  any  per- 
son or  corporation  an  exclusive  right  to  use  the  streets  of  the 

1  In  Glasby  v.  Morris,  18  N.  J.  Eq.  72, 1866,  it  seems  to  be  the  opinion. of 
Chancellor  Zabriskie,  although  the  point  is  not  much  examined,  that  where 
the  adjoining  proprietors  own  the  fee,  a  municipal  corporation  cannot  con- 
struct a  sewer  in  a  public  street  without  an  express  grant;  and  he  held 
that  in  such  case  the  municipal  corporation  as  against  the  adjoining  owner's 
consent  could  not  authorize  a  private  person  to  build  a  subterranean  drain 
in  the  street.    Post,  Chap.  XIX- 

2  Regina  v.  Sheffield  Gas  Company,  22  Eng.  Law  and  Eq.  518 ;  Galbreath 
v.  Armour,  4  Bell,  App.  Cas.  374 ;  Meen  v.  Gas  Company,  2  El.  &  El.  651 ; 
Queen  v.  Charlesworth,  16  Queen's  B.  1012 ;  Regina  v.  Train,  9  Cox,  Cr.  Cas. 
180;  Boston  v.  Richardson,  13  Allen,  146,  160,  by  Gray,  J. 

3  State  v.  Cincinnati  Gas  Company,  18  Ohio  St.  262,  1868.  As  to  power  of 
municipalities  to  grant  permission  to  lay  down  gas  pipes  in  the  streets,  see, 
alsp,  Milhau  v.  Sharp,  15  Barb.  210,  per  Edwards,  P.  J. ;  Smith  v.  Metropoli- 
tan Gas  Light  Company,  12  H"qw.  Pr.  Rep.  187  (Supreme  Court,  Special 
term,  1855) ;  Norwich  Gas  Company  v.  Norwich  City  Gas  Company,  25  Conn, 
}9, 1856;  Smith  v-  Metropolitan  Gas  Company,  12  How.  Pr.  187;  People  v, 
Bensqn,  30  Barb,  24. 


CH.  XVIII.]  MUNICIPAL    POWER    OVER   STREETS.  529 

city  for  the  purpose  of  laying  down  gas  pipes  for  a  term  of 
years,  and  thereafter,  until  the  works  shall  he  purchased  from 
the  grantee  by  the  city.  The  court  admitted  that  the  power 
to  light  the  city  would  authorize  the  council  to  contract  for 
gas,  and  to  grant  the  contracting  party  the  use  of  the  streets, 
hut  denied  its  authority  to  make  such  use  exclusive  for  a  de- 
terminate future  period.1 

§  548.  In  the  Norwich  Gas  Light  Company  v.  The  Norwich 
City  Gas  Company,  the  plaintiffs  claimed  to  have  the  exclusive 
right  to  the  use  of  the  streets  and  public  places  of  the,  city  of 
Norwich  for  the  purpose  of  hying  down,  gas  pipes  and  distribu- 
ting gas  therein,  and  sought  an  injunction  to  restrain  the  de- 
fendant, a  rival  company,  from  using  the  streets  for  a  similar 
purpose.  Plaintiff's  claim  to  an  exclusive  right  to  the  use  of 
the  streets  was  based  upon  an  act  of  the  city  council,  in  terms, 
giving  such  exclusive  privilege.  It  appeared  that  the  city  did 
not  own  the  soil  or  fee  of  the  streets,  but  that  this  was  in  the 
adjoining  proprietor,  as  in  case  of  ordinary  highways,  sub- 
ject to  the  public  right  of  way,  and  the  right  of  the  city 
to  regulate  their  use,  by  making  by-laws  "relative  to  the 
streets  and  highways  of  the  city,"  "  relative  to  public  lights 
and  lamps,"  &c.  The  court  decided  that  while  the  act 
of  the  city  council  was  a  license  which  would  protect  the  plain- 
tiffs from  a  prosecution  for  a  public  uuisance  for  digging  up 
the  streets  in  order  to  lay  down  their  pipes,  it  was  inoperative 
(from  want  of  power  in  the  city)  to  confer  upon  them  an  ex- 
clusive right  to  the  use  of  the  streets  for  this  purpose.2 

§  549.  The  plaintiff's  claim  to  an  exclusive  use  of  the  streets 
was  further  based  upon  an  act  of  the  legislature,  which  gave  them 
a  right  (but  did  not  oblige  them  to  exercise  it),  to  use  the  streets 
of  the  city  of  Norwich  to  lay  down  gas  pipes,  &c,  which  right 
'was  declared  to  be  exclusive  against  any  and  all  persons  or 
corporations,"  &c,  with  an  exception  not  material  to  be  noticed. 
When  this  act  was  passed,  the  defendant's  works  were  far  ad- 
/ 

1  State  v.  Cincinnati  Gas  Company,  18  Ohio  St.  262, 1868. 

a  Norwich  Gas  Light  Company  v.  Norwich  City  Gas  Company,  25  Conn. 
19, 1856. 

67 


530  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

vanced.     The  court  were  of  the  opinion  that  the  act  gave  the 
plaintiffs  no  interest  in  the  streets,  and  that  they  could  only  sus- 
tain their  bill  for  an  injunction  upon  the  idea  that  they  have 
an  interest  in  the  street  that  is  being  interfered  with,  or  threat- 
ened to  be,  by  the  defendants.     The  court  were  further  of  the 
opinion,  and  so  held,  that  the  act  giving  the  plaintiffs  the  ex- 
clusive use  of  the  streets  was  a  restriction  upon  the  free  manu? 
facture  and  sale  of  gas,  was  a  monopoly,  and  unconstitutional 
and  void.     The  court  distinguished  this  from  the  grants  of 
ferry  and  bridge  franchises  which  are  founded  upon  an  ade- 
quate consideration,  in   the   obligation  to  accommodate  the 
public,  keep  in  repair,  &c.     But,  remarks  the  court, "  The  grant 
to  the  plaintiffs  appears  to  have  been  made  without  any  consid- 
eration whatever  for  it.     The  plaintiffs  are  under  no  obligation 
to  make  gas,  or  suffer  the  gas  they  make  to  be  used."1     "As 
there  was  no  consideration,  public  or  private,  reserved  for  the 
grant,  and  as  the  business  of  manufacturing  and  selling  gas  is 
an  ordinary  business,  like  the  manufacture  of  leather,  or  any 
other  article  of  trade,  in  respect  to  which  the  government  has 
no  exclusive  prerogative,  we  think,  that  so  far  as  the  restriction 
of  other  persons  than  the  plaintiffs  from  using  the  streets  for 
the  purpose  of  distributing  gas  by  the  means  of  pipes  can  be 
fairly  viewed  as  intended  to  operate  as  a  restriction  upon  its 
free  manufacture  and  sale,  it  comes  directly  within  the  defini- 
tion and  description  of  a  monopoly ;  and  although  we  have  no 
direct  constitutional  provision  against  a  monopoly,  yet  the 
whole  theory  of  a  free  government  is  opposed  to  such  grants, 
and  it  does  not  require  even  the  aid  which  may  be  derived 
from  the  bill  of  rights,  which  declares  '■  that  no  man  or  set  of 
men  are  entitled  to  exclusive  public  emoluments  or  privileges 
from  the  community,'  to  render  them  void." 

§  550.  With  reference  to  this  decision,  it  may  be  remarked, 
that  in  order  to  induce  the  investment  of  capital  in  such  enter- 
prises, it  is  quite  usual  for  the  legislature,  or  city  council  by 

1  A  gas  company  js  not,  upon  the  general  principles  of  the  law,  bound,  in 
the  absence  of  an  express  statute  or  contract,  to  furnish  gas  to  all  buildings 
on  the  lines  of  their  main  pipes,  upon  being  tendered  the  fixed  price,  or  a 
reasonable  compensation:  Patterson  Gas  Light  Company  v.  Brady  3  Dutch 
(N.  J.)  245, 1858,  ' 


CH.  XVIII.]  MUNICIPAL   POWER   OVER   STREETS.  531 

legislative  authority,  to  grant  exclusive  privileges  for  a  limited 
time.  Whether  the  principles  of  this  decision  would  be  ex- 
tended to  such  cases,  or  to  cases  where  a  consideration  was 
reserved  for  the  grant,  or  whether,  without  regard  to  these 
circumstances,  the  restriction  on  the  power  of  the  legislature 
therein  declared  will  be  followed  elsewhere,  are  questions 
Which  as  yet  remain  to  be  settled.  However  it  may  be  as  re- 
spects the  power  of  the  legislature  to  make  ther  grant  exclusive, 
no  such  power,  it  is  clear,  can  be  exercised  by  a  municipal 
council,  unless  it  be  plainly  conferred  by  express  words,  or  by 
necessary,  or  at  least,  reasonable,  implication.1 

§  551.  Water  Pipes. — The  use  of  streets  for  the  purpose  of 
laying  down  water  pipes  stands  Upon  the  same .  principles  as 
their  use  for  sewers  and  gas  pipes.  Where  the  charter  gives 
to  the  city,  in  terms,  the  power  to  supply,  or  authorize  the  in- 
habitants to  be  supplied  with  water,  the  municipal  council  may 
use,  or,  as  an  incidental  power,  may  permit  the  contractor  to 
use,  the  streets  for  this  purpose,  and  the  adjoining  feeholder  is 
not  entitled  to  compensation  as  for  a  new  servitude,  for  it  is 
not  such,  but  only  a  proper  or  necessary  use  incident  to  a  street 
in  a  populous  place.2 

§  552.  Telegraph  Poles, — Legislative  sanction  directly  given, 
or  mediately  conferred  through  proper  municipal  action,  is 
necessary  to  authorize  the  use  of  streets  for  the  posts  of  a  tele- 
graph company.  If  Such  posts  be  erected  within  the  limits  of 
a  street  or  highway  without  such  sanction,  they  are  nuisances; 
but  if  the  erection  be  thus  authorized,  they  are  not.3 

1  People  v.  Benson,  30  Barb.  24 ;  State  v.  Cincinnati  Gas  Company,  supra. 

2  Angell  on  Highways,  Sees.  25,  312 ;  Milhau  v.  Sharp,  15  Barb.  210  per 
Edwards,  P.  J. ;  Kelsey  v.  King,  32  Barb.  410.  Water  company  compelled 
to  lower  pipes  laid  in  a  street  by  legislative  sanction,  so  as  to  conform  to  a 
new  grade  established  by  municipal  authority :  Commissioners  v.  Hudson, 
2  Beas.  (N.  J.)  420.  Water  company's  liability  for  negligent  escape  of  water 
from  pipes :  Blyth  v.  Birmingham  Water  Works,  4  Exch.  (Hurl.  &  Gord.) 
781. 

*  Commonwealth  v.  Boston,  97  Mass.  555 ;  Kegina  v.  Telegraph  Company, 
9  Cox,  Cr.  Cas.  174,  cited  in  Eedfield  on  Carriers,  Sec.  574,  and  note,  where 
leading  opinion  of  Orompton,  J.,  is  given ;  Young  v.  Yarmouth,  9  Gray,  386, 
construing  the  statute  of  Massachusetts. 


532  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

§  553.  Openings  in  Sidewalks. — In  many  cities  lot  proprie- 
tors upon  streets  are  permitted  to  make  openings  in  the  side- 
walks, in  order  to  obtain  an  entrance  into  the  basement  or 
cellar,  and  also  to  make  openings  under  the  sidewalk  to  give 
additional  cellar  room.  If  the  fee  of  the  street  is  in  the  mu- 
nicipality in  trust  for  the  public  uses,  as  it  frequently  is,  it  ex- 
tends to  the  whole  street,  including  the  sidewalk,  and  the 
adjoining  lot  owner  would,  it  seems  clear,  have  no  right  as 
against  the  public,  or  the  municipality  charged  with  the  con- 
trol of  the  streets,  to  appropriate  them  to  this  use.  To  recog- 
nize such  a  right  wcild  be  inconsistent  with  the  public 
rights,  which  are  paramount  to  the  whole  street,  and  to  all 
uses  and  servitudes  required,  or  which  may  be  required, 
for  the  public  benefit  and  convenience.  But  such  uses  may 
be  permitted  by  the  municipality  when  they  do  not  interfere 
with  the  public  interests,  and  are  authorized  by  their  charters. 
If  the  fee  of  the  street  is  in  the  adjoining  owner,  as  it  fre- 
quently is,  the  question  as  to  the  rightfulness  of  such  a  use  of 
the  sidewalk  may  not  be  so  plain,  and  yet,  even  in  this  case, 
the  public  right  must  be  paramount  to  individual  interests,  and 
the  rights  of  the  public  are  not  limited  to  a  mere  right  of  way, 
but  extend,  as  we  have  shown,  to  all  beneficial  uses,  as  the 
public  good  or  convenience  may  from  time  to  time  require. 
The  use  of  the  streets  for  sewers,  tunneling,  public  cisterns, 
gas  pipes,  water  pipes,  and  other  improvements,  might  be 
seriously  affected  by  the  recognition  of  a  right  in  the  abutter  to 
make  at  pleasure  openings  in,,  or  even  under,  the  sidewalk  or 
street.  The  correct  view  would  seem  to  be  that  all  rights  of 
this  character  must  come  from  legislative  declaration  or  mu- 
nicipal license,  express  or  implied  from  general  usage. 

§  554.  Speaking  of  this  subject,  the  Supreme  Court  of  Illi- 
nois remark:  "We  are  not  prepared  to  admit  that  the  defend- 
ant could,  by  reason  of  his  ownership  of  the  adjoining  property, 
claim  the  absolute  right  to  take  up  the  sidewalk  and  extend 
his  coal  cellar  under  it,  but  as  such  a  privilege  is  a  great  con- 
venience in  a  city,  and  may,  with  proper  care,  be  exercised 
with  little  or  no  inconvenience  to  the  public,  we  think  that  the 
authority  to  make  such  cellars  may  be  implied,  in  the  absence. 


CH.  XVIII.]  RAILROADS    IN    STREETS.  533 

of  any  action  of  the  corporate  authorities  to  the  contrary,  they 
having  been  aware  of  the  progress  of  the  work."  "But,"  the 
court  adds,  "  while  we  infer  a  license  thus  to  use  a  part  of  the 
public  street,  it  is  on  the  condition  that  the  person  doing  so 
shall  use  more  than  ordinary  care  and  expedition  in  the  prosecu- 
tion of  the  work.  Neither  the  public  or  other  individuals 
derive  any  possible  advantage  from  such  a  use  of  the  sidewalk, 
but  it  is  solely  for  the  benefit  of  the  person  thus  using  it,  and 
he  must  see  to  it  that  he  does  not  endanger  the  safety  of  others, 
and  that  he  incommodes  the  public  as  little  as  possible."  1 

Railroads  in  Cities. —  Use  of  Public  Streets  by  .Railroads.-^-  Extent 
of  Legislative  and  Municipal  Authority. 

§  555.  Reference  is  elsewhere  made  to  the  plenary  power 
of  the  legislatures  of  the  states  in  this  country  over  all  public 
ways,  including  not  only  common  highways,  but  streets  within 
the  limits  of  municipalities.  It  has  often  been  decided,  and  is 
settled,  that  the  legislature  has  the  power  to  authorize  the 
building  of  a  railroad  on  a  street  or  highway,  and  may  directly 
exercise  this  power  or  devolve  it  upon  the  local  or  municipal 
authorities.2 

1  Nelson  ».  Godfrey,  12  111.  22,  23.  Supra,  Sec.  521,  note.  "What  may  be 
deemed  a  reasonable  and  proper  use  of  a  way,  public  or  private,  must  de- 
pend much  on  the  local  situation  and  much  on  public  usage.  The  general 
use  and  acquiescence  of  the  public  is  evidence  of  the  right:''  O'Linda  «. 
Lothrop,  21  Pick.  292,  297.    Infra,  Sec.  585. 

2  Mercer  v.  Eailroad  Company,  36  Pa.  St.  99,  1859;  Black  v.  Railroad 
Company,  58  Pa.  St.  249 ;  Philadelphia,  &c.  Railroad  Company,  6  Whart.  25, 
affirmed  in  Commonwealth  v.  Railroad  Company,  27  Pa.  St.  339, 354;  Green 
v.  Reading,  9  Watts,  382 ;  Henry  v.  Bridge  Company,  8  Watts  &  Serg.  85 ; 
O'Connor  ».  Pittsburg,  6  Harris,  189;  Railroad  Company  v.  Adams,  3  Head, 
596;  Moses  v.  Railroad  Company,  21  111.  516;  Murphy  v.  Chicago,  29  111. 
279;  Railroad  Company  v.  Municipality,  1  La.  An.  .128;  9  ib.  284;  Geiger  v. 
Filor,  8  Fla.  325;  Springfield  v.  Railroad  Company,  4  Cush.  63;  Taten.  Rail- 
road Company,  7  Ind.  479;  Railroad  Company  v.  Daily,  13  Ind.  353;  S.  C. 
ib.  551 ;  People  v.  Kerr,  27  N.  Y.  188 ;  Clinton  v.  Railroad  Company,  24  Iowa, 
455;  Lackland  v.  Railroad  Company,  31  Mo.  180;  Porter  v.  Railroad  Com- 
pany, 33  Mo.  128,  1862;  James  River  Company  v.  Anderson,  12  Leigh  (Va.), 
276;  Chicago  v..  Robbins,  2  Black,  424. 

A  different  view  has  been  sometimes  taken.  Thus,  in  Donnaher  v.  The 
State,  8  Sm.  &  Mar.  649,  1847,  the  court  decided  that  where  the  statute 
under  which  a  city  was  laid  out  vested  the  title  of  the  streets  in  the  city, 


534  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

§  556.  If  the  fee  in  the  streets  or  highways  is  in  the  public, 
or  in  the  municipality  in  trust  for  public  use,  and  is  not  in  the 
abutter,  the  doctrine  seems  to  be  settled  that  the  legislature 
may  authorize  them  to  be  used  by  a  railroad  company  in  the 
construction  of  its  road,  without  compensation  to  adjoining 
owners,  or  to  the  municipality,  and  without  the  consent,  and 
even  against  the  wishes,  of  either.1 

§  557.  But  where  the  public  have  only  an  easement  in  the 
street  or  highway,  it  has  been  generally,  but  not  always,  held 
that  against  the  proprietor  of  the  soil  the  use  of  the  street  or 
highway  for  the  purposes  of  a  steam  railroad  is  an  additional 
burden,  which,  under  the  constitutions  of  the  different  states, 
cannot  be  imposed  by  the  legislature  without  compensation  to 
such  proprietor  for  the  new  servitude.2 

that  such  streets  cannot  be  subjected  to  the  use  of  a  railroad  without  the1 
consent  of  the  city,  unless  the  damages  to  the  city  are  assessed  and  paid. 
In  other  words,  the  legislature  can  only^nterfere  with  the  use  of  the  streets 
of  the  city  by  its  exercise  of  the  right  of  eminent  domain ;  and  if  it  exer- 
cises this  right  it  must  compensate  the  city,  But  this  conclusion  seems  to 
have  been  adopted  without  sufficient  reflection,  and  is  undoubtedly  erro- 
neous.   Ante,  Chap.  IV.  Sees.  30-36. 

In  Great  Britain  express  legislative  authority  is  necessary  to  warrant  streets 
to  be  used  for  the  purposes  of  railways:  Galbreath  \S.  Armor,  4  Bell,  App: 
Cas.  374;  Queen  v.  Gas  Company,  2  Ellis  &  EL  651;  Queen  v.  Charlesworthj 
16  Q.  B.  1012;  Begina  v.  Train,  9  Cox  Cr.  Cas.  180;  1  Barn.  &  Ad.  30.  On 
the  right  of  railways  to  occupy  highways,  see  Redfield  on  Railways,  Sec. 
76,  and  notes. 

1  Clinton  v.  Railroad  Company,  24  Iowa,  455,  1868;  S.  P.  People  v.  Kerr, 
27  N.  Y.  188;  Railroad  Company  ii.  Applegate,  8  Dana,  289;  Williams  v. 
Railroad  Company,  16  N.  Y.  97,  obiter;  Wager  v.  Railroad  Company,  25  1SL 
Y.  526;  note  observations  on  page  533;  Protzman  v.  Railroad  Company,  9 
Ind.  467 ;  13  Ind.  353 ;  i&,  551 ;  Moses  v.  Railroad  Company,  21  111.  522.  See 
Cooley,  Const.  Lim.  555, 556,  and  notes;  Hinchman  v.  Paterson  Horse  Rail- 
road Company,  17  N.  J.  Eq.  75;  People  v.  Law,  34  Barb.  494;  Railway  Com- 
pany v.  Philadelphia,  47  Pa.  St.  325;  Carson  v.  Railroad  Company,  35  Cal. 
325,  1868. 

2  Williams  ».  Railroad  Company,  16  N.  Y.  97,  1857;  Wager  v.  Railroad 
Company,  25  N.  Y.  526,  1862;  Mahin  v.  Railroad  Company,  24  N.  Y.  658; 
Fletcher  v.  Railroad  Company,  25  Wend.  462;  Bissell  v.  Railroad  Company, 
23  N.  Y.  61;  Davis  v.  Mayor,  &c.  of  New  York,  14  N.  Y.  526;  Carpenter  v, 
Railroad  Company,  24  N.  Y.  655;  Gray  v.  Railroad  Company,  13  Minn.  315; 
Williams  v.  Plank  Road  Company,  21  Mo.  580;  Ford  v.  Railroad  Company, 
14  Wis.  616;  Pomeroy  «.  Railroad  Company,  16  Wis.  640.    And  this,  says 


CH.  XVIII.]  RAILROADS   IN    STREETS.  535 

§  558.  Delegated  Municipal  Authority. — The  legislature,  in- 
stead of  granting,  by  direct  act  or  general  legislation,  the  power 
to  railroad  companies  to  occupy  streets  for  the  purpose  of 
building  and  operating  their  roads,  may  delegate  to  munici- 
palities the  right  to  say  when  and  upon  what  conditions,  if  at 
all,  the  public  streets  within  their  limits  may  be  thus  used.1 
The  usual  and  ordinary  powers  of  municipal  corporations  to 

Judge  Cooky,  appears  to  be  the  weight  of  judicial  authority :  Const.  Lim. 
549.  4-nd  such  is  also  the  opinion  of  Judge  fiedfield:  Redfield  on  Railways 
(3d  ed,),  Sec.  76,  and  note. 

It  is  now  firmly  established  as  law  in  New  York,  by  the  cases  above  cited, 
that  the  use  of  a  street  or  highway  for  a  railroad  is  an  additional  burden 
beyond  the  public  easement,  which  cannot  be  imposed  by  the  legislature 
directly,  or  by  a  municipal  corporation  derivatively,  without  compensation 
to  the  owner  of  the  fee,  whether  it  be  city  lots  or  country  property ;  that 
such  use  without  the  consent  of  the  fee  owner,  or  acquiring  the  right 
under  the  law,  by  compensating  him  for  it,  is  a  wrong,  for  which  trespass 
will  lie,  or  ejectment  to  recover  possession  of  the  land,  subject  to  the  public 
easement.  Contra,  Porter  v.  Railroad  Company,  33  Mo.  128.  The  author 
ventures  to  observe,  however,  that,  in  the  absence  of  special  constitutional 
restrictions,  there  is  much  to  recommend  the  doctrine  of  the  plenary  power 
of  the  legislature  over  all  streets  and  highways  and  public  places,  and  their 
uses,  which  is  asserted  in  the  Pennsylvania  cases,  the  leading  one  of  which 
is  the  Philadelphia,  &c.  Railroad  Company,  6  Whart.  25 ;  affirmed,  27  Pa. 
St.  339,  354;  criticised,  Williams  v.  Railroad  Company,  16  N.  Y.  97,  106. 
See,  also,  O'Connor  v.  Pittsburg,  18  Pa.  St.  187, 189 ;  Commonwealth  v.  Pass- 
more,  1  Serg.  &  Rawle,  217  (  approved,  Chicago  v.  Robbins,  2  Black,  423. 

1  Mercer  v.  Railroad  Company,  36  Pa,  St.  99,  1859 ;  Railroad  Company  v. 
Leavenworth,  1  Dillon,  C.  Cr  R.  393, 1871 ;  Slatten  v.  Railroad  Company,  29 
Iowa,  148;  Philadelphia  v.  Railroad  Company,  3  Grant  (Pa.),  403;  Moses  v. 
Railroad  Company,  21  111.  516;  Geiger  v.  Filor,  8  Fla.  325;  Tate  v.  Railroad 
Company,  7  Ind.  479 ;  Brooklyn,  &c,  Railroad  Company  v.  Brooklyn,  &c. 
Railroad  Company,  32  Barb.  358 ;  Railroad  Company  v.  New  York,  1  Hilton 
(N.  Y.)  562;  Wolfe  v.  Railroad  Company,  15  B.  Mon.  404;  Commonwealth 
v.  Railroad  Company,  27  Pa.  St.  339, 

Grant  construed  not  to  be  exclusive,  in  the  grantee :  Brooklyn,  &c.  Rail- 
road Company  v.  Coney  Island,  &c.  Railroad  Company,  35  Barb.  364;  18  N. 
Y.  160 ;  Railway  Company  v.  Kerr,  45  Barb.  138 ;  Street  Railroad  Company 
v.  City  Railway  Company,  2  Duvall  (Ky.),  175. 

If  a  railroad  company  is  authorized  to  occupy  the  street  of  a  city,  it  pos- 
sesses, as  a  necessary  incident,  the  power  to  make  a  "turn-out"  within 
the  limits  of  the  street,  to  communicate  with  the  depot  on  the  street:  Rail- 
road Company  v.  Municipality,  1  La.  An.  128;  S.  P.  Knight  v.  Railroad 
Company,  9  ib.  284.  Power  to  construct  railroad  in  streets  held  to  include 
sidings  and  branches  to  wharves;  Black  a.  Railroad  Company,  58  Pa.  St. 
249;  Philadelphia  v.  Railroad  Company,  ib.  253. 


536  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

regulate  streets  and  keep  them  free  from  obstructions  are  not 
sufficient,  it  is  believed,  to  empower  them  to  authorize  the  use 
thereof  for  the  purpose  of  constructing  and  operating  thereon 
a  steam  railway,  as  these  powerc  are  not  to  be  enlarged  by  con- 
struction, and  were  not  conferred  for  this  purpose.1 

§  559.  Where,  under  the  general  statutes  of  a  state,  a  rail- 
road company  was  forbidden  to  construct  and  operate  its  road 
upon  the  streets  of  an  incorporated  city,  "  without  the  assent 
of  the  corporate  authorities,"  these  are  not  limited  to  a  simple 
granting  or  denial  of  the  right  of  way,  but  may  prescribe  con- 
ditions on  which  they  will  give  their  assent,  and  if  these  are 
accepted  by  the  railroad  company,  they  are  binding  upon  the 
parties;  and,  accordingly,  where  the  right  of  way  along  a  street 
was  granted  by  a  city,  on  condition  that  the  company  should 
build  a  depot  in  a  certain  part  of  the  city  and  grade,  rip-rap, 
and  pave  the  street  it  used,  and  the  company  agreed  to  accept 
it  on  these  terms,  it  was  lipid  that  it  could  not  hold  and  enjoy 
the  grant,  and  not  comply  with  the  conditions  on  which  it  was 
made.2 

1  Railroad  Company  v.  Shiels,  33  Geo.  601, 1863.  In  this  case  it  was  held 
that  the  usual  municipal  power  over  streets  does  not  give  the  municipal 
authorities  the  right  to  authorize  a  railroad  company  to  lay  their  track 
lengthwise  on  one  of  the  streets  of  a  city  on  a  grade  requiring  deep  excava- 
tions and  high  embankments,  to  the  great  damage  of  the  adjoining  owner; 
See  People  o.  Carpenter,  2  Doug.  (Mich.)  273.  Infra,  Sees.  559,  560.  In  Ken, 
tucky,  the  doctrine  is  .that  the  municipal  authorities  may  consent  to  the 
use  of  streets  by  railway  companies :  Railroad  Company  v.  Applegate,  8  Dana, 
289,  1839;  Wolfe  v.  Railroad  Company,  15.B.  Mon.  404,  1854;  Railroad  Com, 
pany  v.  Brown,  17  B.  Mon.  763,  1856.  So,  in  Iowa,  it  has  been  decided  that 
municipal  corporations  have  the  authority  to  authorize  the  use  of  streets 
by  railway  companies  on  such  grade  as  their  councils  may  prescribe ;  and 
that  the  company  is  not  liable  for  the  necessary  damages  to  adjpining  lot 
owners,  resulting  from  the  proper  exercise  of  the  power  thus  conferred: 
Slatten  v.  Railroad  Company,  29  Iowa,  148,  1870. 

2  Railroad  Company  v.  Leavenworth,  1  Dillon,  C.  C.  R.  393, 1871;  S.  P, 
Railroad  Company  v.  Baltimore,  21  Md.  93;  City  Railroad  Company  v.  City 
Railroad  Company,  20  N.  J.  Eq.  (5  C.  E.  Green)  61,  1869. 

In  the  Railroad  Company  v.  Leavenworth,  supra,  an  ordinance  and  con- 
tract, special  in  their  terms,  were  construed  to  give  the  city  a  right  to  re- 
enter and  take  possession  of  the  street,  and  remove  the  railroad  track,  on 
the  failure  of  the  company.to  comply  with  the  conditions  of  the  ordinance 
granting  to  it  the  right  of  way.    The  case  also  considers  the  principles. 


CH.  XVIII.]  RAILROADS   IN   STREETS.  537 

§  560.  Authority  to  Occupy  and  Use  Streets — How  Conferred, 
and  Construed. —  Legislative  authority  to  railroad  companies  to 
occupy  the  streets  of  an  incorporated  place,  although  it  must 
exist  to  warrant  the  occupation,  need  not  be  expressly  con- 
ferred, but  may  be  given  by  necessary  implication.1  But  a 
general  grant  to  construct  a  railroad  between  certain  termini, 
without  prescribing  its  exact  course  or  line,  was  considered  to 
authorize  the  crossing  of  public  highways,  because  this  was 
necessary  in  order  to  execute  the  grant,  but  was  not  regarded 
as  prima  facie  conferring  the  power  to  occupy  highways  longi- 
tudinally.2 

which  will,  in  such  cases,  govern  the  chancellor  in  granting  or  denying  a 
temporary  injunction  against  the  city,  to  restrain  it  from  taking  possession 
of  the  street,  and  removing  the  rails,  and  preventing  the  running  of  the 
trains  of  the  company. 

Remedy  by  injunction  by  and  against  city  corporation:  Clinton  v.  Railroad 
Company,  24  Iowa,  455 ;  S.  C.  ib.  482,  note ;  Railroad  Company  v.  Baltimore, 
21  Md.  93:  Morris,  &c.  Railroad  Company  ».  Newark,  2  Stock.  Ch.  352;  Mil- 
waukee v.  Railroad  Company,  7  Wis.  85.  Remedy  by  injunction  by  adjoin- 
ing owners :  Zabriskie  v.  Railroad  Company,  2  Beasl.  314 ;  Hinchman  v. 
Railroad  Company,  17  N.  J.  Eq.  75 ;  Ford  v.  Railroad  Company,  14  Wis. 
609;  Milburn  v.  Railroad  Company,  12  Iowa,  246.  Post,  Chap.  XXII.  Effect 
of  delay  by  city  in  applying  for  injunction  when  assent  has  been  given,  but 
conditions  have  not  been  complied  with:  Railroad  Company  v.  Baltimore, 
21  Md.  93 ;  Clinton  v.  Railroad  Company,  24  Iowa,  485,  note. 

1  Ante,  Sec.  558.  Commonwealth  v.  Railroad  Company,  27  Pa.  St.  339; 
Allegheny  v.  Railroad  Company,  26  Pa.  St.  355. 

The  implication  must  be  a  necessary  one,  and  the  legislative  intent  must 
appear  with  great  clearness,  to  justify  a  company  in  laying  their  track 
through  the  entire  length  of  a  street,  with  a  grade  requiring  deep  excava- 
tions and  high  embankments,  injurious  to  the  adjoining  property :  Railroad 
Company  v.  Shiels,  33  Geo.  601, 1863. 

2  Clinton  v.  Railroad  Company,  24  Iowa,  455,  480,  1868;  Springfield  v. 
Railroad  Company,  4  Cush.  63, 1849,  where  the  subject  is  fully  considered 
by  Shaw,  C.  J.  And  the  court  held  that  if  the  road,  chartered  by  the  legis- 
lature, could  not  be  built  [in  Cabotville]  without  using  a  street  or  highway, 
so  much  of  such  street  or,  highway  might  be  used,  although  there  were  no 
express  words  to  that  effect  in  the  charter,  as  should  be  "reasonably  suffi- 
cient to  accommodate  all  the  interests  concerned,  and  to  accomplish  the 
objects  for  which  the  grant  was  made."  See,  also,  Roxbury  v.  Railroad 
Company,  6  Cush.  424, 1850;  Brainard  v.  Railroad  Company,  7  Cush.  506; 
Moses  v.  Railroad  Company,  21  111.  516;  Railroad  Company  v.  Payne,  8 
Rich.  (South  Car.)  Law,  177 ;  Commonwealth  v.  Railroad  Company,  27  Pa. 
St.  339;  Attorney  General  v.  Railroad  Company,  4  C.  E.  Green.  (N.  J.),  586, 

68 


538  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

§  561.  A  railroad  laid  out  over  or  on  a  highway  or  street  so 
as  to  obstruct  it,  without  express  statute  authority  or  necessary 
implication,  is  liable  to  indictment  as  a  nuisance.1  And  the 
company  may  be  enjoined  from  laying  down  their  track  by 
the  public  authorities,  or  by  lot  owners  specially  injured.2 

§  562.  Under  general  laws  conferring  upon  railway  com- 
panies the  right  of  way  over  highways,  and  under  special  char- 
ters or  general  acts  giving  to  incorporated  places  the  right  to . 
grade,  improve,  regulate,  and  control  public  streets  within 
their  limits,  embarrassing  and  difficult  questions  have  arisen, 
depending  for  their  solution  upon  the  supposed  intention  of 
the  legislature  to  be  collected  from  the  body  of  the  legislation 
on  the  subject.3 

By  construction  of  the  statute  in  Massachusetts,  a  railroad  corporation  is 
primarily  liable  to  third  persons  for  damages  caused  to  their  estates  by  rais- 
ing a  street  of  a  city  so  that  its  railroad  may  pass  under  the  same;  and  this 
primary  liability  is  not  changed  or  affected  by  the  fact  that  the  city  takes 
from  the  railroad  company  a  bond  of  indemnity :  Gardiner  v.  Boston,  &c. 
Railroad  Corporation,  9  Cush.  1, 1851.    Post,  Chap.  XXII. 

Where  railroad  alters  highway  it  is  bound,  by  effect  of  the  legislation  in 
Massachusetts  and  Connecticut,  to  restore  the  highway  to  a  safe  condition, 
and  this  obligation  is  a  continuing  one,  and  the  railroad  company  cannot 
protect  itself  against  the  liability  to  indemnify  the  town,  on  the  ground 
that  the  statute  of  limitations  would  bar  an  action  against  the  railroad  com- 
pany for  the  original  construction  of  the  nuisance.  The  town  may  look  to 
the  railroad  company  which  constructed  the  nuisance,  and  it  ib  no  defence, 
it  seems,  that  at  the  time  of  the  accident  the  road  is  in  the  hands  of  another 
company  as  lessee:  Hamden  v.  Railroad  Company,  27  Conn,  158, 1858,  ap- 
proving Lowell  v.  Railroad  Company,  23  Pick.  24;  Wellcome  v.  Leeds,  51 
Maine,  313;  Veazie  v.  Mayo,  45  ib.  560;  8.  C.  49  ib.  156.  Respective  rights 
of  railroad  company,  the  municipal  corporation,  and  lot  owners,  growing 
out  of  the  crossing  of  streets  and  highways  by  railroads,  see,  generally : 
Hughes  v.  Railroad  Company,  2  Rh.  Is.  493 ;  Railroad  Company  v.  Decatur, 
33  111.  381;  Nicholson  v.  Railroad  Company,  22  Conn.  74. 

1  Commonwealth  v  Railroad  Company,  14  Gray  (Mass.),  93. 

2  Railroad  Company  v.  Shiels,  33  Ga.  601,  1863 ;  supra,  Sees.  520,  522. 

3  Milburn  v.  Railroad  Company,  12  Iowa,  246 ;  Clinton  v.  Railroad  Com- 
pany, 24  Iowa,  455 ;  Railroad  Company  v.  Adams,  3  Head  (Tenn.)  596 ; 
Drake  v.  Railroad  Company,  7  Barb.  508 ;  Milhau  v.  Sharp,  15  Barb,  193  ; 
27  N,  Y.  611 ;  Plant  v.  Railroad  Company,  10  Barb.  26 ;  Adams  v.  Railroad 
Compapy,  11  Barb.  414 ;  Redneld  on  Railways,  Sec.  76. 

Power  in  the  charter  of  a  city  "to  open,  alter,  abolish,  widen,  extend, 
grade,  or  otherwise  improve  or  keep  in  repair  streets,"  does;  not  authorize 


CH.  XVIII.]  RAILROADS  IN   STREETS.  539 

§  563.  If  a  city,  without  authority  from  its  charter  or  stat- 
ute, and  without  rent  or  compensation,  licenses  individuals  to 
occupy  for  their  private  benefit,  a  public  street  with  a  railroad, 
and  other  property  owners  suffer  special  damage,  the  city  is 
not  liable  therefor  even  though  the  licensees  may  have  given  it 
a  bond  of  indemnity.  Such  licensees  are  not  the  agents  of  the 
city,  and  the  license  does  not  authorize  them  to  do  any  damage 
to  others.  If  it  had  the  power  to  grant  such  a  license,  "that 
power  would  not  authorize  it  to  make  itself  responsible  for  the 
acts  of  others,  from  which  neither  it  nor  its  citizens  derived 
any  benefit,  and  which  were  not  done  for  the  accommodation 
of  the  public  travel  and  business."1  Such  a  case  is  to  be  dis- 
tinguished from  tortious  acts  done  by  the  direction  or  procure- 
ment or  sanction  of  a  city  corporation  for  which  it  is  liable.2 

§  564.  Where  there  is  legislative  authority,  either  immedi- 
ately, or  through  the  authorized  action  of  municipalities,  for 
the  occupation  and  use  of  streets  for  the  uses  of  a  railroad,  this 
will  protect  the  railway  companies  from  prosecutions  and  suits 
for  public  nuisances,  but  it  will  not  affect  their  liability  to  ad- 

the  council  thereof  to  grant  the  right  to  a  railroad  company  to  obstruct  the 
street  by  permanent  structures  inconsistent  with  its  use  as  a  street :  Lack- 
land Q.  Railroad  Company,  31  Mo.  180, 1860;  Same  v.  Same,  34  Mo.  259. 
Read  in  connection,  Porter  v.  Railroad  Company,  33  Mo.  128.  In  the  case 
last  cited,  it  appeared  that  in  the  charter  of  the  company  it  was  authorized 
by  the  legislature  to  build  its  road  "along  or  across  any  state  or  county 
road,  or  street,  or  wharves  of  any  city,"  but  it  "  shall  not  be  so  constructed 
as  to  prevent  the  public  from  using  the  road,  street,  or  highway  along  or 
across  which  it  may  pass ; "  and  it  was  held  that  the  ordinary  use  by  a  rail- 
road under  this  charter,  with  the  consent  of  the  municipality,  of  a  street 
was  not  a  perversion  of  the  highway  from  its  original  purposes,  and  that 
the  resulting  damage  to  adjoining  property  was  damnum  absque  injuria. 
But  the  company  is  liable  to  one  suffering  special  damages  for  using  the 
street  in  an  unauthorized  and  illegal  manner:  34  Mo.  259,  supra;  Common- 
wealth v.  Railroad  Company,  27  Pa.  St.  339. 

1  Green  v.  Portland,  32  Maine  (2  Reding),  431, 1851 ;  Roll  v.  Augusta,  34 
<}a.  326,  1866. 

"  It  is  the  settled  law  of  this  court,  as  well  as  in  most  of  the  other  states 
of  the  Union,  that  it  is  a  legitimate  use  of  a  street  or  highway  to  allow  [un- 
der legislative  authority]  a  railroad  track  to  be  laid  down  in  it,  and  for  so 
doing  the  city  is  not  liable  for  any  damages  which  may  accrue  to  individ- 
uals : "    Per  Caton,  C.  J.,  Murphy  o.  Chicago,  29  111.  279,  286, 1862. 

2  Thayer  *>.  Boston,  19  Pick.  511;  12  ib.  184.    Post,  Chap.  XXIII. 


540  MUNICIPAL  CORPORATIONS.  [CH.  XVIII. 

joining  owners  in  those  states  where  such  owners  are  entitled 
to  compensation  for  the  additional  servitude  of  such  a  use  of 
their  lands.1  There  are  cases  which  hold  that  when  railroad 
companies  are  authorized  to  use  streets,  either  by  the  legisla- 
ture, or  by  competent  municipal  action,  there  is  a  liability,  in 
certain  cases,  to  the  adjoining  proprietor  for  consequential 
damages,  other  than  for  property  taken ;  but  questions  of  this 
character  do  not  fall  within  the  province  of  this  work.2 

§  565.  Municipal  Control. —  Rate  of  Speed. —  Obstructions. — 
Resulting  from  the  power  over  streets,  and  to  protect,  the 
safety  of  citizens  and  their  property,  municipal  corporations, 
in  the  absence  of  legislative  restriction,  may  control  the  mode 
of  propelling  cars  within  their  limits,  may  prohibit  the  use  of 
steam  power,  and  regulate  the  rate  of  speed.3    Although  a 

1  Fletcher  v.  Railroad  Company,  25  Wend.  462,  1841 ;  Mahon  v.  Eailroad 
Company,  Hill  &  D.  Suppl.  156 ;  Hamilton  v.  Eailroad  Company,  9  Paige, 
171 ;  Drake  v.  Railroad  Company,  7  Barb.  508  ;  Robinson  v.  Railroad  Com- 
pany, 27  Barb.  512 ;  Ford  v.  Railroad  Company,  14  Wis.  609,  1861 ;  Protz- 
man  v.  Railroad  Company,  9  Ind.  467,  1857 ;  Redfield  on  Railways,  Sec.  76, 
and  notes. 

*  Railroad  Company  v.  O'Dailey  13  Ind.  353,  1859 ;  S.  C.  12  ib.  551 ;  Lack- 
land v.  Railroad  Company,  34  Mo.  259 ;  Same  v.  Same,  31  Mo.  180 ;  Porter  v. 
Same,  33  Mo.  128 ;  Hinchman  v.  Patterson  Horse  Railway  Company,  17  N. 
J.  (2  C.  E.  Green)  75-83;  Zabriskie  v.  Railroad  Company,  2  Beas.  (N.  J.) 
314;  McLauchlin  ».  Railroad  Company,  5  Rich.  (S.  C.)  Law,  583, 1850;  Street 
Railroad  Company  v.  Cumminaville,  14  Ohio  St.  523. 

In  Indiana  the  fee  simple  of  streets  in  towns  and  cities  seems  to  be  in  the 
public;  at  all  events,  it  is  held  that  taking  the  street  for  the  laying  down  of 
the  track  of  a  railroad  is  not  taking'  such  an  "interest  in  the  land"  as, 
under  the  statute,  will  entitle  the  adjoining  proprietor  to  the  statutory 
remedy  for  compensation.  Such  proprietor  may  sue  for  the  consequential 
injury,  but  cannot  restrain  on  the  ground  that  a  railroad  in  a  city  is  a  nuis- 
ance :  New  Albany  &c.  Railroad  Company  v.  O'Dailey,  13  Ind.  353,  1859 ; 
S.C  12  ib.  551 ;  Protzman  v.  Railroad  Company,  9  .ib.  467,  1857.  Further, 
as  to  nature  of  rights  of  adjoining  lot  owner  in  street,  regarding  the  use  of 
the  street  "  as  appurtenant  to  the  lot,''  and  as  property :  Haynes  v.  Thomas, 
7  Ind.  38.  City  council  cannot,  by  its  license,  give  a  railroad  company  such 
a  right  to  lay  down  its  track  in  a  public  street  as  will  protect  it  from  an 
action  by  the  adjacent  lot  owner  who  is  injured  by  a  change  in  the  grade 
or  elevation  of  the  street :  Protzman  v.  Railroad  Company,  9  Ind.  467, 1857. 
Distinguished  from  Snyder  v.  Rockport,  6  Ind.  237,  1855.  But  see  Slatten 
v.  Railroad  Company,  29  Iowa,  148,  1870. 

8  Donnaher  v.  State,  8  Sm.  &  Mar.  (Miss.)  649, 1847 ;  Redfield  on  Railways 
(2  Ed.),  616 ;  Railroad  Company  v.  Buffalo,  5  Hill  (N.  Y.),  209.  See  ordi- 
nances— airde,  p.  330,  Sec.  326. 


CH.  XVIII.]  RAILROADS   IN   STREETS.  541 

railway  passing  through  the  streets  of  a  city  is  not  necessarily 
a  nuisance,  yet,  if  it  is  so  operated  as  to  become  dangerous  to 
private  property,  it  may  become  a  nuisance,  and  be  indicted  or 
otherwise  proceeded  against,  accordingly.1  A  municipal  cor- 
poration, by  virtue  of  its  police  authority  and  power  over  its 
streets,  may  enact  an  ordinance  to  prohibit  cars  from  obstruct- 
ing the  crossing  of  its  streets ;  and  the  court  expressed  the 
opinion  that  trains  could  be  so  made  up,  and  the  road  so  op- 
erated, as  to  make  it  unnecessary  to  block  up  the  streets." 

§  566.  Horse  Raihoays  in  Streets. — Municipal  Control. —  The 
power  of  municipal  corporations  to  authorize  the  establishment 
of  horse  railways  within  their  limits,  or  to  authorize  the  use  of 
the  public  streets  for  that  purpose,  has  presented  some  inter- 
esting questions  for  adjudication.  In  a  leading  case — Davis  v. 
The  Mayor  of  New  York3 — it  appeared  that  the  city  corpora- 
tion, by  its  charter,  possessed  general  power  to  open,  alter, 
repair,  and  regulate  the  streets.  By  virtue  of  this  power,  and 
without  any  express  authority,  mediately  or  immediately,  from 
the  legislature,  the  corporation  of  the  city  undertook,  by  resolu- 
tion, to  confer  upon  an  association  of  persons  the  exclusive  right 
to  construct  and  maintain  for  a  term,  of  years  a  railway  in  Broad- 
way for  the  transportation  of  passengers  for  profit.  It  was  the 
opinion  of  five  of  the  seven  judges  of  the  Court  of  Appeals 
taking  part  in  the  decision  of  the  cause  that  the  resolution 
was  void.  The  judges  delivering  opinions  discussed  the  ques- 
tion, whether  the  municipal  government,  in  the  exercise  of 
their  authority  over  the  streets,  might  construct,  or  by  mere 
license,  revocable  at  pleasure,  authorize  others  to  construct, 
such  a  railway,  but  reached  different  conclusions  upon  it. 

1  Hentz  v.  Long  Island  Railway,  13  Barb.  646,  1852 ;  State  v.  Tupper, 
Dudley  (S.  C),  Law,  135,  1838.  See,  also,  Eedfleld  on  Railways  (2  Ed.),  616, 
and  authorities  there  cited.  Pierce  on  Railways,  245^48.  Construction  of 
special  charter  on  the  subject:  State  v.  Jersey  City,  5  Dutch.  (N.  J.)  170, 
1861.    Indictment:  Post,  Chap.  XXII. 

2  Railroad  Company  v.  Galena,  40  111.  344,  1866 ;  Railroad  Company  v. 
Chenoa,  43  111.  209.  An  ordinance  forbidding  "any  kind  of  obstruction"  in 
the  streets  was  deemed  comprehensive  enough  to  embrace  the  obstruction 
of  a  street  by  a  railroad  company  with  its  cars :  Railroad  Company  v..  Gale- 
na, 40  111.  344, 1866 ;  Railroad  Company  v.  Decatur,  33  111.  381 ;  Gahagan  v. 
Railroad  Company,  1  Allen  (Mass.),  187. 

1  Davis  v.  Mayor,  &c.  14  N.  Y.  506, 1856. 


542  MUNICIPAL    CORPORATIONS.  [CH.  XVIII. 

§  567.  The  judgment  of  the  court  in  the  case  just  mentioned 
rests  upon  the  sound  principle  that  the  powers  of  a  corporation 
in  respect  to  the  control  of  its  streets  are  held  in  trust  for  the 
public  benefit,  and  cannot  be  surrendered  or  delegated  by  con- 
tract to  private  parties;  and  hence  the  resolution  of  the  coun- 
cil authorizing  private  persons  to  construct  and  operate  a  rail- 
road upon  certain  terms,  without  power  of  revocation  and 
without  limit  as  to  time,  was  not  a  license  or  act  of  legislation, 
but  a  contract;  void,  however,  because  if  valid  it  would  deprive 
the  corporation  of  the  control  and  regulation  of  its  streets. 
"Taking  the  whole  ordinance  together,"  says  Comstock,  J.,  in 
his  opinion,  "it  is  no  less  than  an  abrogation  by  the  common 
council  of  their  powers  and  duties  over  and  concerning  the 
public  streets,  and  a  surrender  of  a  considerable  portion  of 
those  powers  and  duties  into  the  hands  of  private  individuals, 
or  a  private  corporation.  This  the  corporation  of  New  York 
cannot  do.  Time  and  experience  may  give  a  very  unfavorable 
solution  to  the  question  whether  this  railroad,  or  any  railroad 
in  Broadway,  can  be  beneficial  to  the  public,  but  the  hands  of 
the  city  government  will  be  tied  by  the  contract  into  which  it 
has  entered,  and  future  change  and  improvement  may  be  pre- 
vented by  the  voluntary  surrender — in  effect  in  perpetuity  — 
of  its  own  powers.  On  this  ground  the  ordinance  is  void." 1 
And  this  view  was  subsequently  approved  by  the  same  court,2 
and  is  unquestionably  sound. 

§  568.  In  Great  Britain,  legislative  authority  or  sanction  is 
necessary  to  enable  the  town  or  others  to  occupy  the  streets  or 
highways  for  the  purpose  of  a  horse  or  street  railway;3  and 
such  is  doubtless  the  law  in  this  country.4    Whether  powers 

1  Per  Comstock,  J.,  in  Davis  v.  The  Mayor,  &c.  of  New  York,  14  N.  Y.  506, 
532. 

2  Milhau  v.  Sharp,  27  N.  Y.  611,  1863;  S.  C.  15  Barb.  528;  followed,  Cole- 
man ».  Railroad  Company,  38  N.  Y.  201.  See  Hinchman  v.  Patterson  Horse 
Eailroad  Company,  17  N.  J.  Eq.  (2  C.  E.  Green)  75;  City  Railroad  Com- 
pany v.  Memphis,  4  Coldw.  (Tenn.)  406,  1867.    Ante,  Sec.  61. 

3  Galbreath  v.  Armour,  4  Bell  App.  Cas.  374;  Queen  b.  Gas  Company,  2 
Ellis  &  El.  651;  Queen  v.  Charlesworth,  16  Q.  B.  1012;  Regina«.  Train,  9 
Cox  Cr.  Cas.  180. 

4  Boston  v.  Richardson,  13  Allen  (Mass.),  146, 160,  per  Gray,  J. ;  City  Rail- 
road Company  v.  Memphis,  4  Coldw.  (Tenn.)  406, 1867;  Redfleld  on  Rail- 


CH.  XVIII.]  RAILROADS   IN   STREETS.  543 

granted  to  municipalities  will  include  the  authority  to  consent 
to  such  a  use  of  the  streets  by  an  authorized  company,  is  one 
of  construction,  when  the  authority  is  not  conferred  in  express 
and  specific  terms. 

§  569.  The  charter  of  New  Orleans  gave  to  the  city  the 
power  "to  regulate  and  improve  streets,"  and  to  "regulate  carts, 
&c,  and  vehicles  of  every  description,  thereon;"  and  a  state 
law,  in  relation  to  public  improvements,  declared  that  "no 
railroad,  plank  road,  or  canal  should  be  constructed  through 
the  streets  of  any  incorporated  city  or  town  without  the  con- 
sent of  the  municipal  council  thereof,  "i  Under  these  circum- 
stances, it  was  held  competent  for  the  city  to  grant  the  right 
of  way  in  the  streets  to  private  individuals,  for  a  specified  time, 
for  the  purpose  of  laying  down  rails  and  running  horse  cars 
over  them,  according  to  a  tariff  to  be  fixed  by  the  common 
council.1 

ways  (3  ed.),  p.  317,  top,  where  the  valuable  report  of  this  learned  and  able 
jurist  to  the  Massachusetts  legislature,  in  respect  to  the  rights  and  interests 
of  street  railways,  is  re-printed.  After  stating  that  it  is  not  competent  for 
any  one  to  lay  a  passenger  railway  in  the  streets  at  his  option,  and  that 
municipalities  cannot  create  such  companies,  Judge  JRedfield,  in  the  report 
above  mentioned,  observes  that  "it  is  now  entirely  well  settled  that  such 
a  franchise  jn  the  highways  can  only  be  created  by  legislative  grant.  It  is 
a  franchise  to  carry  passengers  and  to  demand  tolls.  This  is  one  of  the 
prerogatives  of  sovereignty,  and  derivable  only  through  the  action  of  the 
legislature.  *  *  *  It  is  not  like  ordinary  mechanical  or  manufacturing 
business,  which  any  one  many  institute  at  pleasure : "  lb.  319,  320. 

In  the  charter  of  a  street  railway  company,  it  was  authorized  to  use  the 
streets  of  a  city  upon  obtaining  the  consent  of  the  council,  and  by  a  supple- 
ment it  was  authorized  to  construct  several  tracks  specified,  no  reference 
being  made  to  any  consent  of  the  council;  and  it  was  decided  that,  as  to 
such  tracks,  the  consent  of  the  council  was  unnecessary :  Jersey  City  v. 
Railroad  Company,  20  N.  J.  Eq.  (5  C.  E.  Green)  360, 1869. 

1  Brown  v.  Duplessis,  14  La.  An.  842,  1859.  The  Supreme  Court  of  Lou' 
isiana,  in  the  case  just  cited,  in  holding  that  the  adjacent  lot  owners  could 
not  enjoin  the  city  from  authorizing  the  use  of  the  public  streets  for  laying 
down  and  operating  horse  railways,  assign  the  following  reasons  for  their 
judgment:  "Streets,  public  walks,  and  quays  are  things  which  belong  in 
common  to  all  inhabitants  of  cities  and  other  places,  and  to  the  use  of 
which  all  the  inhabitants  of  a  city  or  other  place,  and  even  strangers,  are 
entitled  in  common  (Civil  Code,  449, 444-5).  Plaintiffs  cannot,  then,  claim 
an  exclusive  use  of  the  streets,  or  complain  if  their  use  be  impeded  by  a 
similar  use  of  the  streets  by  other  persons.    *    *    *    No  citizen  has  a  legal 


544  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

§  570.  Aside  from  the  question  as  to  the  right  of  adjoining 
lot  owners  to  additional  compensation,  the  legislature  has  the 
undoubted  power  to  authorize  at  pleasure  the  use  of  streets  for 
railroad  purposes ;  and  the  usual  extensive  powers  conferred 
upon  municipal  corporations  to  improve  and  control  streets 
and  regulate  their  use  will,  it  is  believed,  ordinarily  authorize 
them  to  use,  or  permit  the  use  of,  streets  for  horse  railways, 
provided  they  do  not  surrender  or  abdicate  their  legislative 
and  police  powers  and  functions  with  respect  to  the  streets  and 
the  persons  or  corporations  thus  licensed  to  use  them.  The 
legislature  may  authorize  the  municipalities  to  give  or  with- 
hold an  absolute  assent  to  such  a  use  of  their  streets,  or  it  may 
leave  them  free  to  annex  conditions,  or  it  may  itself  require 
certain  conditions  to  be  met  before  the  grant  shall  be  made  by 
the  municipal  authorities.1 

right  to  complain  that  the  streets  are  used  by  other  citizens  in  a  peculiar 
manner,  even  if  it  causes  him  a  little  inconvenience,  so  long  as  he  himself 
is  allowed  the  free  use  of  the  streets  in  his  peculiar  mode.  The  streets  are 
destined  for  public  use,  but  not  for  a  particular  mode  of  public  use.  If  the 
city  of  New  Orleans  wished  to  expend  the  money  necessary  for  the  laying 
of  rails  throughout  the  city,  for  the  purpose  of  permitting  all  who  wished 
to  run  their  own  cars  thereupon,  drawn  by  horses  or  mules,  no  one  could 
complain,  so  long  as  it  did  not  prevent  other  modes  of  traversing  the 
streets,  for  traveling  in  cars  on  rails  is  one  mode  of  using  public  streets, 
and  there  is  no  reason  in  the  nature  of  things  why  it  should  be  lawful  to 
travel  in  a  carriage  or  gig  upon  the  streets,  and  not  lawful  to  travel  in  a  car 
■upon  rails  fixed  in  the  streets,  but  not  so  laid  as  to  prevent  the  use  of  the 
streets  by  other  modes  of  conveyance.  If  it  does  not  suit  the  public  coffers 
or  the  public  convenience  that  the  city  should  lay  rails  for  the  free  use  of 
the  public,  it  follows,  from  the  premises  [but  see,  on  this  point,  Davis  v. 
The  Mayor,  &c.  supra],  that  the  city  has  the  prerogative  of  selling  the  right 
•of  way,  for  a  specified  time,  to  one  or  more  persons,  who  shall  lay  rails  and 
have  the  privilege  of  running  cars,  drawn  by  horses  or  mules,  according  to 
a  tariff  fixed  by  the  common  council.  This  does  not  impede  the  ordinary 
mode  of  use,,  promotes  trade,  unites  distant  parts  of  the  city,  benefits  the 
health  of  citizens  by  enabling  them  to  live  beyond  the  crowded  thorough- 
fares, and  is  not  an  alienation  or  appropriation  of  a  portion  of  the  public 
streets  for  private  uses:  "  Per  Cole,  J.,  in  Brown  v.  Deplessis,  14  La.  An.  842, 
1859.    Ante,  Sees.  §1,  566,  567. 

1  Railroad  Company  v.  Baltimore,  21  Md.  93 ;  Railroad  Company  v.  Leav- 
enworth, 1  Dillon,  C.  C.  R.  393,  1871;  Frankford  Passenger  Railway  Com- 
pany v.  Philadelphia,  58  Pa.  St.  119,  1868;  Moses  v.  Railroad  Company,  21 ' 
111.  522;  Clinton  p.  Railroad  Company,  24  Iowa,  455;   People  v.  Kerr,  27  N.  ' 
X  1S8;  Hinphman  v.  Patterson  Horse  Railroad  Company,  17  N.  J.  Eq.  (2  C. 


CH.  XVIII. J  RAILROADS   IN   STREETS.  545 

§  571.  Thus,  by  a  statute  of  Ohio  relating  to  the  construc- 
tion of  street  railways,  city  councils  were  prohibited  from  per- 
mitting their  construction  without  "the  consent  of  a  majority 
in  interest  of  the  owners  of  the  property  upon  the  street  being 
first  had  and  obtained,"  and  it  was  held  that  such  consent  was 
a  condition  precedent  to  the  power  of  the  city  to  grant  such 
permission,  and  that  the  action  of  the  city  council  giving  per- 
mission did  not  conclude  the  property  owner  on  tbe  question 
whether  the  requisite  majority  had  assented.1  It  was  also 
decided  in  the  same  case  that  a  second  or  additional  track  was 
in  the  nature  of  a  new  enterprise,  and  required  an  independent 
consent  of  the  property  owners  interested,  and  that  those  who 
had  assented  a  year  before  to  a  single-track  road  could  hot  be 
counted.2    But  even  direct  legislative   authority  to  a  street 

E.  Green)  75 ;  Commonwealth  v.  Central  Passenger  Railway,  52  Pa.  St.  506 ; 
Philadelphia  v.  Railroad  Company,  3  Grant  (Pa.),  403 ;  Railroad  Company 
v.  O'Daily,  12  Ind.  551;  Railroad  Company  v.  Applegate,  8  Dana  (Ky.),  289; 
City  Railway  Company  v.  Louisville,  4  Bush  (Ky.),  478 ;  Railroad  Company 
v.  Adams,  3  Head  (Tenn.),  596;  People  v.  Railroad  Company,  45  Barb.  73; 
Sixth  Avenue  Railroad  Company  v.  Kerr,  45  Barb.  63 ;  McFarland  v.  Rail- 
road Company,  2  Beasl.  (N.J.)  314;  Brooklyn,  &c.  Railroad  Company  v. 
Railroad  Company,  32  Barb.  358;  Railroad  Company  v.  New  York,  1  Hilton 
(N.  Y.),  562;  Mercers  Railroad  Company,  36  Pa.  St.  99, 1859;  City  Rail- 
road Company  v.  Memphis,  4  Coldw.  (Tenn.)  406,  1867 ;  City  Railroad  Com- 
pany v.  City  Railroad  Company,  20  N.  J.  Eq.  61, 1869. 

The  extent  of  municipal  power  and  control  over  street  railways  and  common 
railways  depends,  of  course,  on  the  charter  of  the  company  and  that  of  the 
municipality.  See  State  v.  Hoboken,  1  Vroom  (N.  J.),  225;  Frankford  Pas- 
senger Company  v.  Philadelphia,  58  Pa.  St.  119;  New  York  v.  Third  Avenue 
Railroad  Company,  33  N.  Y.  42;  Philadelphia  v.  Lombard,  &c.  Railroad 
Company,  3  Grant  (Pa.),  403 ;  Street  Railway  Company  v.  Cumminsville,  14 
Ohio  St.  523;  McFarland  v.  Railroad  Company,  2  Beasl.  (N.  J.)  314;  State 
v.  Jersey  City,  5  Dutch.  (N.J.)  170;  Passenger,  &c.  Company  v.  Birming- 
ham, 51  Pa.  St.  41 ;  Wolfe  v.  Railroad  Company,  15  B.  Mon.  (Ky.)  404;  Red- 
field  on  Railways,  Sec.  76,  and  notes;  McFarland  v.  Horse  Railroad  Com- 
pany, 2  Beasl.  Ch.  (N.  J.)  17;  State  v.  Herod,  29  Iowa,  123,  1870;  Slatten  v. 
Railroad  Company,  ib.  148. 

1  Roberts  v.  Easton,  19  Ohio  St.  78, 1869.    Ante,  Sees.  417-420,  424. 

2  Ib.  And  it  was  further  held  in  this  case,  that  the  act  of  the  legislature 
forbidding  city  councils  from  permitting  the  streets  to  be  used  for  a  street 
railway  without  the  assent  of  property  owners  thereon,  recognizes  in  them 
such  an  interest  as  entitles  them  to  an  injunction  against  the  construction  of 
the  road  where  the  council  granted  permission  without  the  requisite  con- 
sent of  the  proprietors  interested  being  obtained.    Ante,  Sec.  522. 

69 


546  MUNICIPAL  CORPORATIONS.  [CH.  XVIII. 

passenger  railway  corporation  to  carry  passengers  in  cars  over 
the  streets  of  a  city  does  not  exempt  that  corporation  from  muni- 
cipal control.  Indeed,  the  principle  is  a  general  one,  that  when 
a  business  is  authorized  to  be  conducted  by  a  corporation  within 
a  municipality,  the  latter  presumptively  possesses  the  same 
right  to  regulate  it  that  it  possesses  over  the  like  business  if 
conducted  by  private  persons.1 

§  572.  Rights  and  Liability  of  the  Company. — Bails  laid  down 
by  a  horse  railroad  corporation  in  a  public  street  are  the  pri- 
vate property  of  the  corporation,  so  that  a  rival  corporation 
cannot  use  them  on  the  ground  that  they,  as  part  of  the  public, 
have  the  right  to  travel  and  run  cars  anywhere  on  such  street.2 
A  street  railway  company  authorized  by  the  legislature  to  lay 
down  its  track  upon  the  streets  of  a  city,  subject  to  such  re- 
strictions as  the  city  council  might  impose,  constructed  its 
track  under  the  direction  of  the  city  engineer,  but  in  such  a 
manner  in  crossing  a  gutter  as  to  cause  surface  waters  to  over- 
flow and  injure  one  of  the  adjoining  proprietors,  and  it  was 
held  that  the  company  was  liable  for  the  damages  resulting 
from  the  improper  construction  of  their  track.3 

1  Erankford  Passenger  Railway  Company  v.  Philadelphia,  58  Pa.  St.  119, 
1868 ;  State  v.  Herod,  29  Iowa,  123, 1870 ;  City  Railway  Company  v.  Louis- 
ville, 4  Bush  (Ky.)  478. 

'  City  Railroad  Company  v.  City  Railroad  Company,  20  N.  J.  Eq.  61, 1869 ; 
Brooklyn  Railroad  Company  v.  Railroad  Company,  32  Barb.  358. 

Street  railway  companies  have  an  easement  in  the  land  or  street  on 
which  their  track  is  laid :  it  is  private  property,  subject  to  taxation,  and  if  no 
different  provision  be  made,  may  be  taxed  as  real  property,  or  assessed  for 
benefits  deriyed  from  local-  improvements :  Street  Railway  Company  Ap- 
peal, 32  Cal.  499, 1867.  Passenger  car  on  street  railway  is  entitled,  as  against 
common  vehicles,  to  preference  in  the  use  of  its  rails,  and  to  an  unobstructed 
road :   "Wilbrand  v.  Eighth  Avenue  Railroad  Company,  3  Bosw.  (N.  Y.)  314. 

Street  Railway  company  held  liable  for  an  injury  to  a  traveler  with  car- 
riage, caused  by  the  projection  of  a  spike,  which  ought  not  to  have  been 
permitted :  Fash  v.  Third  Avenue  Railroad  Company,  1  Daly  (N.  Y.),  148. 
It  is  the  duty  of  the  company,  on  the  one  hand,  to  exercise  due  care  to 
avoid  collisions,  and  the  duty  of  travelers,  on  the  other,  to  use  proper  dili- 
gence to  avoid  accidents  and  injuries :  Liddy  v.  St.  Louis  Railroad  Company, 
40  Mo.  506 ;  Lovett  v.  Railroad  Company  (injury  to  boy),  9  Allen,  557 ;  Bur- 
ton v.  Railroad  Company,  4  Hairing.  (Del.)  252  ;  Street  Railroad  Company 
v.  Smith,  2  Duvall  (Ky.),  556. 

s  Horse  Railroad  Company  v.  Deitz,  50  111.  210, 1869. 


CH.  XVIII.]  RAILROADS   IN   STREETS.  547 

§  573.  Whether  the  use  of  a  street  for  a  horse  railway  is 
an  additional  burden  upon  the  land  of  the  adjoining  proprietor, 
is  a  question  upon  which  there  is  a  diversity  of  judicial  opin- 
ion. In  New  York  it  is  considered  to  he  a  new  servitude,  for 
which  the  adjacent  owner  is  entitled  to  compensation.1  But 
in  Connecticut  the  opposite  view  is  taken,  although  in  that 
state  it  is  declared  to  he  the  law,  that  a  street  or  highway  can- 
not he  used  for  an  ordinary  railway  without  compensation  for 
such  use  to  the  owner  of  the  fee."  The  author  regards  the 
appropriation  of  a  street  for  a  horse  railway,  constructed  and 
used  in  the  ordinary  mode,  to  be  such  a  use  as  falls  within  the 
purpose  for  which  the  streets  are  dedicated  or  acquired  under 
the  power  of  eminent  domain.  When  authorized  or  regulated 
by  the  public  authorities,  this  is  a  public  use  within  the  fair 
'scope  of  the  intention  of  the  proprietor  when  he  dedicates  the 
streets  or  is  paid  for  property  to  be  used  as  streets.  Such 
proprietor  must  be  taken  to  contemplate  all  improved  and 
more  convenient  modes  of  use.  There  is  solid  ground  to  dis- 
tinguish between  horse  railways  in  streets,  as  ordinarily  laid 
and  used,  which  do  not  exclude  the  public,  and  common  rail- 
ways, which  are  generally  so  constructed  as  altogether  to  ex- 
clude a  portion  of  the  street  from  public  use  in  the  accustomed 
modes ;  and  yet,  there  is  much  to  recommend  as  sound,  the 
view  that  where  property  is  dedicated  to  the  public  for  a  street, 
the  dedicator  must  be  presumed  to  intend  that  it  may  be  used 
as  a  street  in  such  way  as  the  legislature  representing  the 
public,  and  best  acquainted  with  the  public  needs,  may  author- 
ize. 

§  574.     Where  the  original  proprietor  parts  with  the  fee, 
which  is  vested  by  statutes  in  some  of  the  states,  in  the  public, 

1  Craig  v.  Railroad  Company,  39  N.  Y.  404 ;  S.  C.  39  Barb.  449 ;  "Wager  h. 
Railroad  Company,  25  N.  Y.  532. 

s  Elliott  v.  Railroad  Company,  32  Conn.  579 :  distinguished  from  Imlay 
v.  Railroad  Company,  26  ib.  249,  and  that  case  commented  on.  And  see  opin- 
ion of  Ranney,  J.,  in  Street  Railway  v.  Cumminsville,  14  Ohio  St.  523,  1863. 
And  it  is  the  opinion,  also,  of  the  learned  Chancellor  Zabriskie,  that  a  steam 
railway  is,  while  a  horse  railway  is  not,  an  additional  servitude :  City  Rail- 
road Company  v.  City  Railroad  Company,  20  N.  J.  Eq.  61, 1869.  See,  also, 
to  same  effect,  the  opinion  of  Green,  Chancellor,  in  Hinchman  v.  Railroad 
Company,  17  N.  J.  Eq.  75,  1864. 


548  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

of  in  the  municipality  for  the  use  of  the  public,  the  courts 
concur  in  holding  that  the  leigslature  may,  in  such  case,  au- 
thorize the  street  or  highway  to' be  used  for  a  street  railway, 
of  even  an  ordinary  railway,  without  his  consent,  and  without 
compensation  to  him.1 

§  575.  In  this  section  and  the  three  following  we  sum  up  the 
conclusion  to  which  our  mind  has  arrived,  after  an  examination 
of  all  of  the  reported  cases  upon  the  subject  of  railways  in 
streets.  .. 

1.  i  As  respects  ordinary  railways,  operated  by  steam,  and 
street  railways,  operated  by  horses,  legislative  authority  is 
necessary  to  warrant  them  to  be  placed  in  the  streets  or  high- 
ways. The  legislature  may  delegate  to  municipal  or  local 
bodies  the  right  to  grant  or  refuse  such  authority.  The  usual 
powers  of  a  general  nature  in  municipal,  corporations  over 
streets  are,  not  sufficient  to  confer  upon  them  the  right  to 
1 

1  Peppier.  Kerr,  27  N.  Y.  188-211 ;  S.  C."  37  Barb.  357 ;  Clinton  v.  Railroad 
Company,  24  Iowa,  455 ;  Bailroad  Company  v.  Applegate,  8  Dana,  289  J 
"Williams  D.  Railroad  Company,  16  N.  Y.  97,  obiter;  "Wager  v.  Railroad  Com- 
pany, 25  N.  Y:  526,  and  note  observations,  533 ;  Protztnan  v.  Railroad  ConK 
pany,  9  Ind.  467  ;  Railroad  Company  v.  O'Daily,  13  Ind.  353;  Moses  v.  Rail- 
road Company,  21  111.  522  ;  Railroad  Company  v.  Leavenworth,  1  Dillon,  C. 
C.  R.  393-402 ;  Milburn  v.  Cedar  Rapids,  &c.  Railroad  Company,  12  Iowa, 
246.  Mr.  Justice  Cootey's  observations  on  the  general  subject  are  very  in- 
teresting: Const.  Lim.  545-557.    Ante,  Sec.  491,  et  seq. 

As  to  nature  of  the  frayichiaea  in  a  charter  to  build  and  operate  a  street 
railway ;  See  Redfield  on  Railways,  Sec.  76,  and  notes ;  Metropolitan  Rail-- 
road  Company  v.  Quincy  Railroad  Company,  12  Allen  (Mass.),  262 ;  Rail-; 
road  Company  v.  City  Railway  Company,  2  Duvall  (Ky.),  175 ;  Central  Rail- 
road Company  v.  City  Railroad  Company,  32  Barb.  358 ;  Chicago  v.  Evans, 
24  111.  52 ;  City  Railway  Company  v.  City  Railway  Company,  20  N.  J.  Eq.  61, 
1869;  Street  Railway  v.  Cumminsville,  14  Ohio  St.  523 :  This  case  holds  that 
the  mere  use  of  a  street  for  a  street  railway  does  not  impose  a  new  use,  so 
as"  to  give  abutters  the  right  to  compensation,  but  under  a  peculiar  view  in 
that  state  as  to  effect  of  a  change  of  grade  (see  Crawford  V,  Delaware,  f 
Ohio  St.  459,  and  previous  cases),  grades  once  fixed  and  acted  on  cannot  be 
altered  to  the  dairiage.of  the  adjacent  lot  owner.  Nature  of  the  rights  of 
the' company  in  the  street;  discussed  by  Sawyer,  J.:  Street  Railway  Cdmpany 
Appeal,  32  Cal.  499;!  1867.  ■! 

Rights  :6f  city  under-  provision  in  charter  of  a  street  railway. giving  the' 
city  an'  election  to  purchase  at  a  future  time :  Cambridge®.  Cambridge  Railroad 
Company,  101  Allen;  SO.    Effect  of  use,  under  legislative  authority,  of  street ; 
by  plankroad  company :  Bagg  v.  Detroit,  5  Mich.  336.    Ante,p.  520,  :n.  i^'<  ' 


CH.  XVIII.]  RAILROADS  IN   STREETS.  549 

authorize  the  appropriation  of  streets  by  ordinary  railroads, 
whose  tracks  are  constructed  in  the  usual  manner  and  whose 
trains  are  propelled  by  steam.  But  it  is  otherwise  as  respects 
street  railways,  and  the  ordinary  powers  of  municipal  corpora- 
tions are  usually  ample  enough,  in  the  absence  of  express  legis- 
lation on  the  subject,  to  authorize  them  to  permit  or  refuse  to 
permit  the  use  of  streets  within  their  limits  for  such  purposes. 
But  they  cannot,  by  any  implied  power,  confer  corporate  fran- 
chises or  authorize  the  taking  of  tolls.  This  must  come  from 
the  legislature. 

§  576.  2.  The  weight  of  judicial  authority  at  present  un- 
doubtedly is,  that  where  the  public  have  only  an  easement  in 
streets,  and  the  fee  is  retained  by  the  adjacent  owner,  the  leg- 
islature cannot,  under  the  constitutional  guarantee  of  private 
property,  authorize  a  steam  railroad  to  be  constructed  thereon, 
against  the  will  of  the  adjoining  owner,  without  compensation 
to  him.  In  other  words,  such  a  railway,  as  usually  constructed 
and  operated,  is  an  additional  servitude.  The  author,  not  dis- 
puting the  justice  of  this  view,  or  that  it  is  the  one  best  sup- 
ported by  the  judgments  of  the  courts,  is  of  opinion  that  it  will 
admit  of  fair  debate,  and  deserves  further  consideration  whether 
the  power  of  the  legislature  over  uses  to  which  highways  may 
be  put  is  really  subject  to  this  supposed  constitutional  limita- 
tion. Although  the  decisions  as  to  the  right  of  the  legislature 
in  such  case  to  authorize  street  railways  without  compensation 
to  the  adjoining  freeholder,  are  conflicting,  it  is  believed  that 
such  railways,  as  ordinarily  constructed  and  used,  do  not  create 
a  new  burden  upon  the  land,  and  hence  the  legislature  is  not 
bound  to,  although  it  may,  provide  for  compensation  to  the 
adjoining  proprietor. 

§  577.  8.  Where  the  fee  of  the  street  is  in  the  municipal- 
ity in  trust  for  the  public,  or  in  the  public,  the  control  of  the 
legislature  is  supreme,  and  it  may  authorize  or  delegate  to 
municipal  bodies  the  power  to  authorize  either  class  of  rail- 
ways to  occupy  streets  without  providing  for  compensation 
either  to'  the  municipality  or  to  the  adjoining  lot  owners.  But 
whe^e  grades  are  altered,  or  actual  (Jamageg  will  be  caused  by 
such  use,  the  legislature  ought  to  provide  that  the  abutters 
should  be  compensated  for  the  injury  they  will  sustain. 


550  MUNICIPAL   CORPORATIONS.  [CH.  XVIII. 

§  578.  4.  As  special  legislative  authority  is  necessary  to  en- 
able a  company  to  construct  a  passenger  railway  in  the  streets, 
the  effect  of  such  authority,  when  obtained  and  acted  upon,  is 
to  give  the  company  a  property  in  the  franchise  and  road,  and 
hence  no  rival  company  has  the  right  to  use  the  track  of  the 
company  which  laid  it  down.  Nor  can  an  individual  or  other 
company,  at  pleasure  and  without  legislative  authority,  con- 
struct a  rival  line  in  the  same  highway.  But  a  legislative 
grant  of  authority  to  construct  a  street  railway  is  not  exclusive 
unless  so  declared  in  terms,  and  therefore  the  legislature  may, 
at  will,  and  without  compensation  to  the  first  company,  author- 
ize a  second  one  on  the  same  streets  or  line,  unless  it  has  dis- 
abled itself  by  making  the  first  grant  irrepealable  and  exclu- 
sive. Whether  it  can  effectually  disable  itself  in  this  manner 
of  its  control  over  highways,  is  a  question  of  a  nature  else- 
where referred  to,  and  which  it  is  not  necessary  to  discuss  in 
this  place.  But  whatever  may  be  the  extent  of  legislative 
power  in  this  respect,  it  is  clear  to  our  mind  that  the  legisla- 
ture cannot,  without  compensation  to  the  first  company,  author- 
ize the  second  company  to  take  or  use  the  track  of  the  first, 
although  with  compensation  this  might  be  done  under  the 
power  of  eminent  domain,  if,  in  its  judgment,  the  public  good 
required  it.  The  extent  of  municipal  police  and  other  control 
over  street  railways  depends,  of  course,  upon  their  charters, 
and  the  legislation  of  the  state  touching  the  subject.1 

§  679.  Bridges. — Having  considered  the  relation  of  munici- 
pal corporations  to  streets  and  highways  within  their  limits,  it 
remains  to  refer  briefly  to  bridges.  Bridges  are  usually  part 
of  the  street  or  highway,2  and  in  this  country  the  power  of  mu- 
nicipal corporations  to  build  them,  and  their  authority  over 
them,  are  wholly  statutory,  and  their  duties  in  respect  to  them 
are  either  declared  by  statute  or  spring  from  their  powers. 
There  is  no  common  law  responsibility  on  municipal  corpora- 

1  Since  the  above  was  written,  the  author  is  gratified  to  learn  that  his 
views  are  coincident  with  those  expressed  by  Chancellor  ZabrUkie  in  his 
able  opinion  in  the  City  Railroad  Company  v.  City  Railroad  Company,  20 
N.  J.  Eq.  (5  C.  E.  Green)  61, 1869. 

2  Chicago  v.  Powers,  42  111.  169, 1866;  Manderschid  v.  Dubuque,  29  Iowa, 
,  73,  1870. 


CH.  XVIII.]  STREETS.  —  BRIDGES.  551 

tions  in  respect  to  the  repair  of  bridges  within  their  limits;  but 
where  bridges  are  part  of  the  streets,  and  built  by  the  munici- 
pal authorities  under  powers  given  to  them  by  the  legislature, 
they  are  liable  for  defects  therein,  on  the  same  principles  and 
to  the  same  extent  as  for  defective  streets,  and  therefore  no  ex- 
tended separate  treatment  in  this  place  is  necessary.1 

1  lb.  Smoot  v.  "Wetumpka,  24  Ala.  112,  1854 ;  Richardson  v.  Turnpike 
Company,  6  Vt.  496,  1834;  Turnpike  Company  v.  Berry,  5  Ind.  (Port.)  286, 
1850;  Humphreys  v.  County,  56  Pa.  St.  204,  1867;  Cooley  v.  Freeholders,  3 
Dutch.  (N.  J.)  415, 1859.    Post,  Chaps.  XX.  XXIII. 

Bridge  defined:  State  v.  Gorham,  37  Maine,  451;  Begina  v.  Derbyshire,  2 
Q.  B.  745;  Sussex  v.  Strader,  3  Harris.  (N.  J.)  108.  The  word  "bridge"  may 
embrace  within  its  meaning  such  abutments  as  are  necessary  to  make  the 
structure  accessible  and  useful :  Tolland  v.  Willington,  26  Conn.  578 ;  Bard- 
well  v.  Jamaica,  15  Vt.  438;  Board,  &c.  v.  Strader,  3  Harris.  (N.  J.)  108;  Bex 
v.  West  Biding,  7  East.  596.  Approaches  to :  Commonwealth  v.  Deerfield, 
6  Allen,  449.  Both  by  the  common  law  and  the  statute  of  22  Henry  VIII., 
affirming  it,  the  duty  of  repairing  public  bridges  rested  upon  the  county  in 
all  cases  where  no  private  person  or  other  body  is  specially  charged  there- 
with: 2  East,  342, 356;  2  Inst.  700,  701 ;  Hill  v.  Supervisors,  12N.Y.  (2  Kern.) 
52, 1854.  See  Follett  v.  People,  ib.  268,  273,  relating  to  obligations  of  pier 
proprietors  under  statute  to  maintain  a  bridge ;  also,  on  same  point,  The 
People  v.  Cooper,  6  Hill,  516;  2  Comst.  165,  173.  In  New  York  this  com- 
mon law  responsibility  of  counties  never  prevailed;  but,  by  statute,  this 
responsibility  is  primarily  upon  the  towns:  Hill  v.  Supervisors,  12  N.  Y, 
(2  Kern.)  52,  1854 ;  Bartlett  «.  Crozier,  17  Johns.  439.  A  provision  in  a  stat- 
ute that  a  certain  bridge,  when  completed,  shall  be  a  public  bridge,  and 
"under  the  control  of  the  county  supervisors,"  makes  it  a  county  charge:  The 
People  v.  Supervisors,  1  Hill,  50, 1841.  Whether  mandamus  lies  to  compel  the 
body  bound  to  repair  bridges  and  highways  to  do  so,  or  whether  the  remedy 
is  by  indictment,  quxre :  1  Hill,  50,  supra.  If  a  bridge  is  built  by  an  individual 
for  his  own  exclusive  benefit,  over  a  highway,  he  is  bound  to  keep  it  in  a  safe 
condition,  or  respond  to  an  action  for  damages  to  any  person  injured  by  his 
omission:  Per  Nelson,  J.,  in  Heacock  v.  Sherman,  14  Wend.  58,  1835;  13  Co. 
33 ;  1  Bac.  Ab.  tit. "Bridges,"  535,  note ;  2  East,  342;  5  Burr.  2594 ;  13  East, 220 ; 
Woolrych  on  Ways  and  Bridges,  202,  204,  and  cases;  1  Salk.  359;  2  Blacks. 
687.  How  long  this  obligation  continues,  where  bridges  become  useful  to, 
and  are  generally  used  by,  the  public,  see  14  Wend.  58,  supra.  As  to  the 
repair,  by  the  public,  of  bridges  originally  built  by  private  persons,  see  also 
Bisher  v.  Bichards",  9  Ohio  St.  495,  502, per  Oholson,  J.;  State  v.  Campton,-2 
N.  H.  513;  Dygert  v.  Schenk,  23  Wend.  446;  Sampson  v.  Goochland,  &c.  5 
Gratt.  (Va.)  241 ;  Monmouth  v.  Gardiner,  35  Maine,  247;  Eailroad  Company 
v.  Duquesne,  46  Pa.  St.  223;  Smoot  v.  Wetumpka,  24  Ala.  112, 1854;  Indian- 
apolis v.  McClure,  2  Ind.  147, 1850.  Powers  and  duties  of  cities  in  respect 
to  bridging  canals  which  intersect  their  streets :  Korah  v.  Ottawa,  32  111. 
121;  Jolietfl.  Verley,  35  111.  58;  Towles  v.  Justices,  14  Geo.  391;  Turnpike 
Company  v.  Berry,  5  Ind.  286, 1850.    No  common  law  obligation  on  canal 


552  MUNICIPAL  CORPORATIONS.  [CH.  XVIII. 

§  580.  An  incorporated  town,  being  charged  with  the  con- 
trol over  its  streets  and  the  duties  to  improve  the  same,  may 
legitimately  contract  for  the  construction  of  free  bridges  over 
a  stream  dividing  its  streets,  and  issue  its  warrants  or  bonds 
to  raise  money  to  be  so  invested.  But  such  corporation  has 
no  power  to  execute  a  deed  of  trust  conveying  a  bridge  erected 
by  the  corporation  to  trustees,  authorizing  the  charging  of 
tolls  thereon,  and  pledging  the  bridge  and  the  tolls  collected 
thereon  for  the  payment  of  the  debt  created  for  its  construc- 
tion.1 A  city  corporation,  invested  with  the  ordinary  powers 
over  streets,  was  held  to  be  authorized  to  provide  for  the  con- 
struction of  a  free  bridge  across  a  river  running  through  it, 
upon  ground  dedicated  and  set  apart  for  a  street,  although  the 
city  was  laid  off  on  only  one  side  of  the  river,  but  was  ap- 
proached from  the  other  side  by  a  road  touching  the  river 
where  the  bridge  was  located.2 

Limitations  on  the  Sight  of  Free  Transit  and  Use. 

§  581.  We  have  heretofore  shown  that  the  primary  purpose 
of  a  street  is  for  public  passage  and  travel,  and  that  unauthor- 
ized and  illegal  obstructions  to  its  free  use  come  within  the 
legal  notion  of  a  nuisance.  But  it  is  not  every  obstruction,  ir- 
respective of  its  character  or  purpose,  that  is  illegal,  even 
although  not  sanctioned  by  any  express  legislative  or  munici- 
pal authority.     On  the  contrary,  the  right  of  the  public  to  the 

company  to  bridge  a  highway  laid  out  subsequent  to  making  of  canal: 
Canal  Company  v.  State,  4  3abr.  (N.  J.)  62.  Municipal  power  to  protect : 
Hooksett  v-  Amoskeag,  &c.  Company,  44  N.  H.  105;  Korah  v.  Ottawa,  32  111. 
121, 1863;  Troy  v.  Railroad  Company,  3  Fost.  (N.  H.)  83,  1851;  Freedom  v. 
Ward,  40  Maine,  383;  County  Commissioners  v.  Holcomb,  7  Ohio,  pt.  I. 
232;  Calais  v.  Pyer,  7  Greenl.  (Me.)  155;  Andover  v.  Sutton,  12  Met.  182; 
Monmouth  p.  Gardner,  35  Maine,  247.    Ante,  p.  519,  n. 

1  Mullarky  p.  Cedar  Falls,  19  Iowa,  21,  1865;  Dively  v.  Cedar  Falls,  27 
Iowa,  227;  Clark  v.  Des  Moines,  19  Iowa,  199;  Chicago  v.  Powers,  42  111. 
169. 

2  Dively  v.  Cedar^Falls,  27  Iowa,  227.  But  not  a  toll  bridge:  lb.;  Mul- 
larky p.  Cedar.Falls,  19  Iowa,  21;  Bell  v.  Foutch,  21  Iowa,  119;  Barrett  v. 
Brooks,  ib.  144.    Ante,  Sec.  580.. 

A  municipal  corporation  can  not,  without  express  authority,  erect  a  toll 
bridge  and  levy  and  collect  tolls:  Clark  v.  Pes  Moines,  19  Iowa,  198;  Colton  v. 
Hanchett,  13  111.  615, 1852. 


CH.  XVIII.]        STREETS. USES. RIGHT  OF  FREE  TRANSIT.  553 

free  and  unobstructed  use  of  a  street  or  way  is  subject  to  rea- 
sonable and  necessary  limitations.  The  carriage  and  delivery 
of  fuel,  grain,  goods,  &c,  are  legitimate  uses  of  a  street,  and 
may  result  in  a  temporary  obstruction  to  the  right  of  public 
transit.  So  the  improvement  of  the  street  or  highway  itself 
may  occasion  impediments  to  its  uninterrupted  use  by  the 
public.  And  so  of  the  improvement  of  adjoining  lots  by  dig- 
ging cellars,  by  building,  &c. ;  this  may  occasion  a  reasonable 
necessity  for  using  the  street  or  sidewalk  for  the  deposit  of 
material.  Temporary  obstructions  of  this  kind  are  not  inva- 
sions of  the  public  easement,  but  simply  incidents  to,  or  limita- 
tions of,  it.  They  can  be  justified  only  when,  and  only  so  long 
as  they  are,  reasonably  necessary.  There  need  be  no  absolute 
necessity;  it  suffices  that  the  necessity  is  a  reasonable  one.  But 
this  will  never  justify  the  leaving  of  the  street  or  way  in  an 
unsafe  and  dangerous  condition,  or  its  use  in  an  unreasonable 
manner  or  for  an  unreasonable  time.1 

1  Angell  on  Highways,  Chap.  VI.;  Hawk.  P.  C.  Chap.  LXXVI.  Sec.  49; 
Clark  v.  Fry,  8  Ohio  St.  358,  373, 1858,  per  Bartley,  C.  J.,  arguendo;  People  v. 
Cunningham,  1  Denio  (N.  Y.),  524;  Rex  v.  Jones,  3  Campb.  231;  O'Linda  v. 
Lothrop,  21  Pick.  292,  1838 ;  Rex  v.  Ward,  4  Ad.  &  El.  405,  relating  to  a 
hoard  erected  for  repairing  a  house;  Rex  i>.  Russell,  6  Barn.  &  Cress.  566, 
as  to  temporary  acts  of  loading  coals  in  keels;  Rex  v.  Cross,  3  Campb.  226; 
Rex  v.  Jones,  6  East,  230. 

In  Commonwealth  v.  Passmore,  1  Serg.  &  Rawl.  217,  the  Supreme  Court  of 
Pennsylvania,  speaking  of  this  subject,  says :  "Necessity justifies  actions  which 
would  otherwise  be  nuisances ;  this  necessity  need  not  be  absolute — it  is 
enough  if  it  be  reasonable.  No  man  has  a  right  to  throw  wood  or  stones 
into  the  street  at  pleasure.  But  inasmuch  as  fuel  is  necessary,  a  man  may 
throw  wood  into  the  street  for  the  purpose  of  having  it  carried  to  his  house, 
and  it  may  lie  there  a  reasonable  time.  So,  because  building  is  necessary, 
stones,  brick,  lime,  sand,  and  other  materials,  may  be  placed  in  the  street, 
provided  it  be  done  in  the  most  convenient  manner,"  and  be  not  unreason- 
ably prolonged.  Approved,  People  v.  Cunningham,  1  Denio  (N.  Y.),  524, 
530;  Clark  v.  Fry,  8  Ohio  St.  358,  374;  Rex  v.  Cross,  3  Campb.  226;  St.  John 
fl.New  York,  3  Bosw.  (N.  Y.)  483.  In  Wood  v.  Mears,  12  Ind.  515,  1859  (an 
action  for  special  damages  against  the  author  of  the  obstruction),  it  was 
held  a  street  of  a  city  may  be  obstructed  by  placing  material  for  build- 
ing in  it  for  a  reasonable  time  and  so  as  to  occasion  the  least  inconve- 
nience, it,  from  want  of  room  elsewhere,  it  be  reasonably  necessary  to  deposit  it  in 
the  street;  and  a  plea  is  defective  which  does  not  aver  or  show  this  reason- 
able necessity,  as  it  cannot  be  judicially  inferred  from  the  fact  that  the 
building  was  being  erected  in  a  populous  city.  Undoubtedly,  a  man  in  the 
pursuit  of  his  lawful  business  will  be  excused  for  acts  which,  if  wantonly 

70 


554  MUNICIPAL    CORPORATIONS.  [CH.  XVIII. 

§  582.  As  a  city  corporation  may  be  compelled  to  pay  dam- 
ages caused  by  tbe  negligent  mariner  in  which  persons  may 
use  or  occupy  the  sidewalks  and  streets  with  building  material, 
it  may  impose  reasonable  conditions  on  those  who  wish  thus 
to  use  or  occupy  the  streets  and  sidewalks — as,  for  exam- 
ple, require  them,  by  ordinance,  to  give  bond  to  indemnity  the 
city  against  losses  or  damages  caused  by  the  manner  in  which 
the  privilege  to  use  and  occupy  the  sidewalks  and  street  is 
exercised.1 

§  583.  A  city  council  having  "exclusive  power  over 
streets,"  has  the  right  to  determine,  by  ordinance,  to  what 
extent,  and  under  what  circumstances,  they  may  be  incum- 
bered with  building  materials,  and  such  an  ordinance  will  pro- 
tect parties  acting  under  it,  not  only  from  a  prosecution  by  tbe 
city,  but  from  actions  by  third  persons,  when  such  actions  are 
not  grounded  upon  the  negligence  of  the  defendant.2 

§  584.  Authority  by  the  charter  to  a  municipal  council  to 
make  "salutary  and  needful  by-laws,"  authorizes  an  ordinance 

done,  would  be  regarded  as  nuisances,  yet  no  considerations  of  private  in- 
terest or  convenience  will  justify  a  person  in  the  pursuit  of  his  business 
unreasonably  to  incommode  the  public  or  interfere  with  their  right  to  the 
free  use  of  the  street:  Angell  on  Highways,  Sec.  231.  The  law  on  this 
point  is  well  stated  by  the  court  in  Eex  v.  Russell,  6  East,  427 :  "  That  the 
primary  object  of  the  street  is  for  the  free  passage  of  the  public,  and  any 
thing  which  impeded  that  free  passage,  without  necessity,  was  a  nuisance. 
That  if  the  nature  of  the  defendant's  business  were  such  as  to  require  the 
loading  and  unloading  of  so  many  more  of  his  wagons  than  could.be  con- 
veniently contained  within  his  own  private  premises,  he  must  either  en- 
large his  premises  or  remove  his  business  to  some  more  convenient  spot." 
Same  principle  applied  to  congregation  of  carts  in  the  public  streets  for  the 
reception  of  slops  from  a  distillery:  People  v.  Cunningham,  1  Denio 
(N.  Y.),  524.  To  the  keeping  of  coaches  at  a  stand  in  the  street,  waiting  for 
passengers :  Rex  v.  Cross,  3  Campb.  226.  To  a  timber  merchant  depositing 
timber  in  the  street;  Rex  v.  Jones,  6  East,  230.  And  see,  also,  Rex  v.  Car- 
lisle, 6  Carr.  &  P.  636;  Rex  v.  Moore,  3  B.  &  Aid.  184. 

Moving  building  on  suitable  streets,  with  expedition  and  care,  is  permissi- 
ble: Graves  a.Shattuek,  35  N.  H.  257. 

1  McCarthy  v.  Chicago,  Supreme  Court  111.  May,  1870. 

2  Wood  v.  Mears  (action  against  builder  for  injuries  caused  by  building 
materials  deposited  in  street),  12  Ind.  515,  1859 ;  distinguished,  Ball  v.  Arm- 
strong, 10  ib.  181.    Supra,  Sec.  581,  n. 


CH.  XVIII.]       STREETS. — USES.  —  RIGHT  OF  FREE  TRANSIT.  555 

prohibiting  the  obstruction  of  any  street  for  the  purpose  of 
building  "  without  the  written  license  of  the  mayor  and  alder- 
men;" and  under  such  an  ordinance  an  agreement  made  in 
consideration  of  such  license  from  the  mayor  alone  is  void,  and 
no  action  lies  thereon.1 

§  585.  The  owners  of  lots  bordering  upon  streets  or  ways 
have,  or  may  have,  in  other  respects,  a  right  to  make  a  reason- 
able and  proper  use  of  the  street  or  way.  What  may  be  deemed 
such  a  use  depends,  in  the  absence  of  legislative  or  authorized 
municipal  declaration,  much  upon  the  local  situationb  and  pu- 
lic  usage — that  is,  the  use  which  others  similarly  situated  make 
of  their  land — this  being  evidence  of  a  reasonable  use.2  Con- 
formably to  these  principles,  it  was  held  that  common  and 
well  established  usage  in  the  city  of  Boston  justified  the  own- 
ers of  land  in  erecting  thereon,  but  on  the  line  of  the  street  or 
way,  warehouses  with  doors  and  windows  opening  upon  the  way 
or  street,  and  shutters  projecting  into  the  same,  when  open, 
and  with  sidewalks  in  front,  having  on  their  surface  iron 
gratings  for  admitting  light  to,  and  trap  doors  for  communi- 
cating with,  the  cellar  or  underground  apartments  of  the 
warehouses,  and  used  for  putting  in  and  taking  out  goods.3 
So,  for  the  same  reasons,  it  is  not  an  unreasonable  use  of  a 
street  in  a  populous  place,  where  land  is  valuable,  so  to  erect 
structures  as  that  the  gates  and  doors,  when  opened,  swing  over 
the  line  of  the  street.  Whatever  may  be  the  rights  of  the  pub- 
lic, certain  it  is  that  these  acts  do  not  constitute  a  trespass  upon 
the  owner  of  the  soil  of  the  street.4 

1  Lowell  v.  Simpson,  10  Allen,  88, 1865. 

a  O'Linda  v.  Lothrop,  21  Pick.  292,  297,  1838;  Gerard  v.  Cook,  2  Bos.  & 
Pul.  109, 1806;  Underwood  v.  Carney,  1  Cush.  285,  292,  1848,  per  Forbes,  J. 

3  Underwood  v.  Carney,  1  Cush.  285, 1848;  21  Pick.  297,  supra.  As  to  lia- 
bility of  city  for  these  openings,  if  unsafe  and  dangerous,  see  Bacon  v.  Bos- 
ton, 3  Cush.  174,  1849;  Lowell  v.  Spaulding,  4  ib.  275. 

4  O'Linda  v.  Lothrop,  21  Pick.  292,  1838.  Supra,  Sec.  538,  et  seq.  Very  re- 
cently, Paxon,  J.,  of  the  Common  Pleas  Court  in  Philadelphia,  in  Philadel- 
phia v.  Presbyterian  Board  of  Publication,  held  that  where  the  ashlar  or 
true  line  of  a  building  conformed  strictly  to  the  line  of  the  street,  but  the 
ornamental  parts  encroached  on  it,  an  injunction  would  not  be  granted  to 
restrain  the  erection  of  such  building,  especially  as  this  has  been  the  cus- 
tom for  years  in  Philadelphia,  and  councils  have  not  legislated  on  the  sub- 
ject: 29  Leg.  Int.  53.    Supra,  Sec.  521. 


556  MUNICIPAL   CORPOKATIONS.  [CH.  XIX. 


CHAPTER  XIX. 

Municipal  Taxation  and  Local  Assessments. 

§  586.  We  have  elsewhere  had  occasion  to  refer  to  the  sub- 
ject of  taxation  in  relation  to  the  powers  and  duties  of  munici- 
palities.1 It  is  chiefly  in  virtue  of  this  power  that  the  revenues 
are  acquired  by  which  municipal  expenses  are  borne,  and  debts 
and  liabilities  paid.  And  it  is,  as  we  shall  presently  see,  by 
virtue  of  a  branch  of  this  great  power  that  local  assessments 
upon  property  benefited,  or  legislatively  declared  or  supposed 
to  be  benefited,  are  imposed,  in  order  to  pay  the  expense  of 
making  local  improvements  of  a  public  nature  within  the  mu- 
nicipality, adjoining  or  near  the  property  assessed.  It  does 
not  belong  to  the  present  work  to  treat  at  length  of  the  power 
of  taxation  by  the  state  and  the  limitations  upon  it.  We  shall 
confine  ourselves  to  a  consideration  of  the  subject  as  connected 
with  municipal  corporations,  and  to  the  peculiarities  which  are 
impressed  upon  the  power  when  exercised  by  municipalities, 
under  authority  conferred  upon  them  by  the  legislature.2 

§  587.  The  taxing  power  of  the  state  consists  in  its  authority 
to  levy  and  collect  taxes,  and  assessments,  which  are  in  the 
nature  of  special  taxes;  and  taxes  (including,  in  the  term, 
assessments)  are  burdens  or  charges  imposed  by  the  legislature, 
or  under  its  authority,  upon  persons  or  property,  to  raise  money 
for  public,  as  distinguished  from  private,  purposes,  or  to  accom- 
plish some  end  or  object  public  in  its  nature.  There  can  be  no 
legitimate  taxation  to  raise  money  unless  it  be  destined  for  the 

1  Ante,  Chap.  I.  p.  18,  note;  Chap.  II.  p.  39,  Sec.  13;  Chap,  IV.  p.  78,  Sec. 
34;  p.  79,  Sec.  35;  p.  80,  Sec.  36;  p.  86,  Sec.  41;  p.  90,  Sec.  44;  Chap.  V.  p. 
112,  Sec.  64;  p.  113,  Sec.  65;  chapter  on  Mandamus,  post. 

2  The  constitutional  aspects  of  the  subject  have  been  well  treated,  both 
by  Mr.  Sedgwick  (Statutory  and  Const.  Law,  Chap.  X.)  and  by  Judge 
Cooley  (Const.  Lim.  Chap.  XIV.)  Mr.  Blackwell's  treatise  on  the  subject 
of  tax  titles  is  well  known  to  the  profession,  and  Chap.  XXXI.  of  that 
work  is  upon  the  subject  of  tax  sales  by  municipal  and  other  corporations. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  557 

uses  or  benefit  of  the  government  or  of  some  of  its  municipali- 
ties, or  divisions  invested  with  the  power  of  auxiliary  or  local 
administration.  A  public  use  or  purpose  is  of  the  essence  of 
a  tax.1  Theoretically,  the  tax-payer'  is  compensated  for  the 
taxes  he  pays  in  the  protection  afforded  to  him  and  his  prop- 
erty by  the  government  which  exacts  the  tax;  but  the  substan- 
tial foundation  of  the  power  is  political,  civil,  or  governmental 
necessity,  and  taxes  are  largely,  if  not  wholly,  as  Mr.  Mill 
contends,  sacrifices  for  the  public  good,  "equality  of  sacrifice" 
being  the  rule  dictated  by  justice.2  Equality,  indeed,  so  far  as 
practicable,  is  iuherent  in  the  very  idea  of  a  tax,  as  distin- 
guished from  an  arbitrary  exaction,  and  in  many  of  the  states 
is  enjoined,  as  we  shall  presently  perceive,  by  constitutional 
provision. 

§  588.  Whatever  limitations  exist  upon  the  legislative  au- 
thority to  wield,  in  its  full  scope,  the  taxing  power  of  the  state 
at  its  will,  must  be  sought  in  the  nature  of  the  power  itself,  as 
thus  briefly  explained,  and  in  express  or  implied  restrictions 
of  the  national  and  state  constitutions.3    Taxation  implies,  as 

1  Hanson  v.  Vernon,  27  Iowa,  28, 47, 1869,  and  see  authorities  there  cited, 
defining  taxes;  People  v.  McCreery,  34  Cal.  432;  Warren  v.  Henly,  31  Iowa 
(not  yet  reported), per  Beck,  J.;  S.  C.  5  West.  Jurist,  101. 

"I  concede/'  says  Black,  C.  J.,  in  Sharpless  v.  Philadelphia,  21  Pa.  St.  147 
167,  "that  a  law  authorizing  taxation  for  any  other  than  public  purposes  is 
void.  *  *  *  A  tax  for  a  private  purpose  is  unconstitutional,  though  it 
pass  through  the  hands  of  public  officers."  A  tax  for  a  private  purpose, 
says  Lowe,  J.,  in  the  Case  of  Wapello  County,  13  Iowa,  405,  is  "a  solecism 
in  language."  What  is  a,  public  purpose  sufficient  to  support  the  power,  has 
been  much  discussed  of  late  years,  particularly  in  connection  with  the 
authority  conferred  upon  municipalities  to  aid  in  the  building  of  railways : 
See  Chap.  VI.  ante,  p.  144,  et  seq.;  Cooley,  Const.  Lim.  Chap.  XIV.  487,  etseq. 

2  Mill,  Political  Economy,  Vol.  II.  pp.  370,  372;  Warren  v.  Henly,  31 
Iowa;  S.  C.  West.  Jurist,  Vol.  V.  p.  101,  opinion  of  Beck,  J. 

8  Subject  to  constitutional  restrictions,  if  any  there  be,  in  the  particular 
state,  it  is  within  the  pcmer  of  the  legislature  of  a  state  to  ascertain  the  public 
burdens  to  be  borne  and  the  persons  or  classes  of  persons  who  ought  to 
bear  them,  and  its  determination  is  not  judicially  reviewable.  Ante,  Chap. 
IV.  pp.  89,  90,  92,  and  the  authorities  there  cited;  People  v.  Mayor,  &c.  of 
Brooklyn,  4  N.  Y.  (4  Comst.)  419, 1851;  followed  in  Brewster  o.  Syracuse,  19 
N.  Y.  116, 118, 1859;  in  Sun  Insurance  Company  v.  The  Mayor,  &c.  8  N.  Y. 
241,  251;  in  Town  of  Guilford  v.  Supervisors,  &c.  13  N.  Y.  (3  Kern.)  143;  in 
Litchfield  v.  Vernon,  41  N.  Y.  123, 1869;  and  in  Scovill  v.  Cleveland,  1  Ohio 


558  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

we  have  seen,  an  imposition  for  a,  public  use;  and  it  also  im- 
plies that  the  imposition  shall  be  upon  some  system  of  appor- 
tionment, so  as  to  secure  uniformity  among  those  who  are,  or 
ought  to  he,  subject  to  the  particular  tax  or  assessment;  and 
hence  we  may  readily  conceive  of  acts  of  the  legislature  de- 
manding sacrifices  of  the  citizen  which  could  not  be  sustained 
as  legitimate  exercises  of  the  taxing  power,  although  no  spe- 
cific provision  of  the  constitution  should  be  infringed.  But 
where  the  imposition  is  properly  a  tax,  and  no  specific  or  ex- 
press constitutional  limitation  exists,  the  power  of  the  legisla- 
ture is  supreme,  and  without  any  theoretical  bounds.  "If  the 
right  to  impose  a  tax  exists,"  says  the  Supreme  Court  of  the 
United  States,1  "it  is  aright  which,  in  its  nature,  acknowledges 
no  limit; "  and  the  reason  is,  that  the  needs  of  the  public  or  of 
the  government  can  ordinarily  have  no  bounds  set  to  them. 
Unless,  therefore,  there  is  some  limit  fixed  in  the  constitution, 
the  state  may  tax  the  property  within  the  state  to  its  full  value ; 
in  other  words,  it  has  unlimited  power  over  the  rate  of  taxation 
and  the  objects  (the  property  subject  to  be  taxed)  of  taxation. 

§  589.  The  power  of  taxation  and  the  power  of  eminent 
domain,  subject  to  both  of  which  all  private  property  is  held, 
although  they  both  originate  in  political  necessity,  are  in  their 

St.  127,  135,  1853 ;  Warren  v.  Henly,  31  Iowa  (not  yet  reported),  per  Beck,  J ; 
De  Pauw  v.  New  Albany,  22  Ind.  204,  1864;  North  Missouri  Railroad  Com- 
pany v.  Maguire,  Supreme  Court  of  Missouri,  1872  (not  yet  reported). 

The  legislature,  in  the  exercise  of  the  taxing  power,  may  impose  a  tax  to 
build  q,  bridge,  or  to  pay  debts  incurred  for  one  already  constructed,  for  the 
public  accommodation;  and  the  legislature  (in  the  absence  of  constitu- 
tional restriction  upon  its  power)  may  define  how  large  that  local  community 
shall  be,  that  is  made  subject  to  the  tax,  whether  the  state,  or  a  county,  or 
a  city,  or  one  or  more  of  its  wards:  Shaw  v.  Dennis,  5  Gilm.  (111.)  416; 
Philadelphia  v.  Field,  58  Pa.  St.  320,  referred  to,  ante,  p.  90,  Sec  43.  If  there 
be  no.  special  restription  on  the  legislature,  it  may  create  taxing  districts 
without  reference  to,  existing  civil  or  political  districts :  Shelby  County  v. 
Railroad  Company,  5  Bush  (Ky.),  225.  Ante,  Chap.  IV.  passim.  Authority 
to  tax  property  outside  of  corporate  limits,  to  pay  bonds  .issued  in  aid  of  a 
railroad,  sustained:  Langhorne  v.  Robinson,  20  Gratt.  (Va.)  661.  But  in 
Wells  v.  City  of  Weston,  22  Mo.  384,  1856,  it  was  held  that  the  legislature 
cannot  constitutionally  authorize  a  municipal  corporation  to  tax,  for  its 
own  local  purposes,  lands  lying  beyond  the  limits  of  the  corporation. 

1  Weston  v.  Charles|;Qn,  2  Pet.  (U.  S.)  449;  McCullough  v.  Maryland,' 4 
Wheat.  316,  431 ;  Hanson  v.  Vernon,  27  Iowa,  28,  49,  1869. 


CH.  XIX.J      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  559 

nature  materially  different.  For  taxes  paid  or  money  exacted 
under  the  taxing  power,  no  direct  specific  compensation  is 
made;  but  where  property  is  taken  under  the  right  of  eminent 
domain,  this  can  be  done,  as  we  have  already  seen,  only  to  the 
limited  extent  required  by  the  particular  object  or  enterprise 
in  favor  of  which  it  is  exercised,  and  then  only  on  the  condi- 
tion of  making  to  the  owner  direct  and  full  compensation  in 
money  for  the  particular  and  unequal  sacrifice  which  he  would 
otherwise  be  obliged  to  make  for  the  public  benefit.  Most  of 
the  courts  have  concurred  in  the  view  that  the  usual  constitu- 
tional provision,  prohibiting  the  taking  of  private  property  for 
public  use  without  compensation,  is  a  limitation  on  the  exer- 
cise, by  the  state,  of  the  right  of  eminent  domain,  and  is  not  a 
limitation  on  the  taxing  power.1 

§  590.  In  the  general  power  of  the  legislature,  as  well  as  in 
its  power  to  create  municipal  corporations,2  may  be  found  the 
right  to  authorize  them,  when  created,  to  impose  or  levy  local 
rates,  taxes,  or  assessments  upon  their  inhabitants,  and  upon  all 
property  within  the  limits  of  the  designated  taxing  district, 
which  is  ordinarily  co-extensive  with  the  territorial  limits  of 
the  municipality.3    Indeed,  it  is  one  of  the  distinguishing  fea- 

1  People  v.  Mayor,  &c.  of  Brooklyn,  4  N.  Y.  (4  Coinst.)  419,  1851  The 
difference  between  taxation  and  eminent  domain  is  here  discriminated  with 
great  clearness  and  precision  in  the  learned  opinion  of  Mr.  Justice  Ruggles. 
Adhered  to  and  followed:  Litchfield  v.  Vernon,  41  N.  Y.  123,  1869.  See, 
also,  Gilman  v.  Sheboygan,  2  Black  (U.  S.),  510,  1862;  Moale  v.  Baltimore 
(opening  street),  5  Md.  314,  1854.  pirate,  Chap.  XVI.  on  Eminent  Domain; 
Hanson  v.  Vernon,  27  Iowa,  28,  54,  1869 ;  Williams  v.  Detroit,  2  Mich.  565 ; 
Railroad  Company  v.  Connelly,  10  Ohio  St.  165. 

1  Ante,  p.  52,  Sec.  17;  p.  67,  Sec.  27. 

3  Hope  v.  Deaderick,  8  Humph.  (Tenn.)  1,  1847;  Godden  v.  Crump,  7 
Leigh  (Va.),  120;  Bulla.  Read,  13  Gratt.  (Va.)  78,98,  1855;  Thompson  v. 
Floyd,  2  Jones  (North  Car.),  Law,  313,  316;  Wilmington  v.  Boby,  8  Ire. 
(North  Car.)  Law,  250,  1848;  Alexander  v.  Baltimore,  5  Gill  (Md.),  383,  393, 
184:7, per  Martin,  J.;  Burgess  v.  Pue,  2  ib.  11;  S.  C.  ib.  254,  1844;  Intendant 
v.  Chandler,  6  Ala.  899;  Estabrook  v.  State,  ib.  653;  Battle  v.  Mobile,  9  ib. 
234.    Supra,  p.  558,  n. 

"  The  state  has  an  undoubted  power  to  tax  persons  and  property  within 
its  limits,  and  it  may  delegate  such  power  to  a  civil  corporation,  so  far  as  it 
may  be  necessary  for  the  good  government  of  the  corporation : "  Harrison 
v.  Vicksburg,  3  Sm.  &  Marsh.  (Miss.)  581,  per  Sharkey,  C.  J. ;  Smith  v.  Aber- 
deen, 25  Miss.  458. 


560  MUNICIPAL    CORPORATIONS.  [CH.  XIX. 

tures  of  our  municipal  institutions,  that  local  rates  shall  be 
locally  imposed  by  those  who  have  to  pay  them  or  bear  their 
burden;  and  this  power,  from  very  early  periods,  has,  in  the 
different  states,  been  constantly  delegated  to,  and  exercised  by, 
the  local  authorities.1 

In  the  absence  of  special  constitutional  restriction,  the  legis- 
lature may  confer  tJie  taxing  power  upon  municipalities  in  such 
measure  as  it  deems  expedient;  in  other  words,  with  such  lim- 
itations as  it  sees  fit,  as  to  the  rate  of  taxation,  the  purposes  for 
which  it  is  authorized,  and  the  objects  (that  is,  the  property) 
which  shall  be  subjected  to  taxation;  but  it  cannot,  of  course, 
confer  any  greater  power  than  the  state  itself  possesses,  and 
must  observe  the  restrictions  and  limitations  of  the  organic 
law.2 

§  591.  The  power  of  the  states  and  their  municipalities  to 
levy  taxes  is  subject  to  certain  express  and  implied  restrictions 
in  the  Federal  Constitution,  which  may  be  here  briefly  men- 
tioned. Thus  states  cannot,  without  the  consent  of  congress, 
lay  any  imposts  or  duties  on  imports  or  exports  except  what  may 
be  absolutely  necessary  for  executing  their  inspection  laws; 
nor  can  they,  without  the  consent  of  congress,  lay  any  duty  on 
tonnage,  as  they  are  expressly  prohibited  from  so  doing  by  the 
constitution.3     !N"or  does  the  power  of  taxation  by  the  states 

1  Caldwell  v.  Justices,  &c,  4  Jones  (North  Car.)  Eq.  323,  1858,  per  Ruffin, 
J.,  quoted  ante,  pp.  18,  19,  note;  Burgess  v.  Pue,  above  cited. 

2  Alexander  v.  Baltimore,  5  Gill  (Md.),  383, 393, 1847,  per  Martin,  J. ;  Primm 
v.  Belleville,  Illinois  Supreme  Court,  April,  1872. 

"The  state  cannot  authorize  a  municipal  corporation  to  impose  a  tax 
which  she  herself  would  have  no  right  to  levy : "  O'Donnell  v.  Bailey,  24 
Miss.  386,  1852.  A  city  corporation  cannot  tax  a  bank  wholly  owned  by  the 
tate,  though  there  be  no  express  provision  exempting  the  property  of  the 
bank  from  taxation:  Mayor  v.  Bank  of  Tennessee,  1  Swan  (Tenn.),  269. 
Nor  can  it  tax  the  public  property  of  a  county  situate  within  the  limits  of  the 
municipality:  Piper  v.  Singer,  4  Serg.  &  Rawle  (Pa.),  354.  Construction  of 
special  constitutional  provision  requiring  the  legislature  to  restrict  the  power 
of  taxation  of  incorporated  towns  and  cities :   Ante,  p.  67,  Sec.  27. 

3  See  ante  p.  117,J3ec.  67,  and  cases  cited. 

As  to  passenger  tax:  Smith  v.  Turner,  7  How.  (U.  S.)  283,  1849;  Smith  v. 
Marston,  5  Texas,  426;  State  v.  Fullerton,  7  Rob.  (La.)  210,  1844;  Norris  v. 
Boston,  4  Met.  282 ;  Rabassa  v.  Mayor,  1  Martin  (La.)  484;  10  Am.  Law  Beg. 
(N.  S.)  July,  1871 ;  Crandall  v.  Nevada,  6  Wall.  35.    Ante,  p.  117,  n. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  561 

extend  to  the  instruments  of  the  federal  government,  nor  to  the 
constitutional  means  employed  by  congress  to  carry  into  execu- 
tion the  powers  conferred  in  the  Federal  Constitution.1  Taxes 
may  be  imposed  by  a  state  on  all  sales  of  merchandise  or  prop- 
erty made  within  the  state,  whether  the  goods  sold  were  the 
produce  of  the  state  imposing  the  tax,  or  of  some  other  state, 
provided  the  tax  imposed  is  uniform,  but  a  tax  discriminating 
against  the  commodities  of  the  citizens  of  the  other  states  of 
the  Union  would  be  inconsistent  with  the  provisions  of  the 
Federal  Constitution,  and  a  law  imposing  such  a  tax  would  be 
unconstitutional  and  invalid.2  And  the  Supreme  Court  of  the 
United  States  has  recently  decided  that  an  act  of  the  legislature 
of  Maryland  levying  discriminating  taxes  against  non-residents  of 
the  state  was  void  (reversing  the  judgment  of  the  Court  of  Ap- 
peals of  Maryland),  because  repugnant  to  the  provision  of  the 
Federal  Constitution,  which  guarantees  to  the  citizens  of  each 
state  all  the  privileges  and  immunities  of  the  citizens  of  the 
several  states.3 

1  McCulloch  v.  Maryland,  4  Wheat.  316,  424 ;  Weston  v.  Charleston,  2  Pet. 
(U.  S.)  449,  1829,  reversing  S.  C.  Harper  (South  Car.),  219;  National  Bank 
v.  Commonwealth,  9  Wall.  353;  Osborn  «.  Bank  of  the  United  States,  9 
Wheat.  738;  Thompson  v.  Pacific  Railroad,  9  Wall.  579;  Union  Pacific  Rail- 
road Company  v  Lincoln  County,  1  Dillon,  C.  C.  B.  314, 1871. 

8  Woodruff  v.  Parham,  8  Wall.  139 ;  Hinson  v.  Lott,  ib.  151 ;  Ward  v. 
Maryland,  12  Wall.  418,  1870,  per  Clifford,  3. ;  Wiley  v.  Parmer,  14  Ala.  627. 

3  Ward  v.  Maryland,  12  Wall.  418,  1870;  (S.  C.  in  state  court:  Ward  v. 
State,  31  Md.  279.)  Giving  the  judgment  of  the  court,  Clifford,  J.,  observed : 
"  Attempt  will  not  be  made  to  define  the  words  '  privileges  and  immuni- 
ties,' or  to  specify  the  rights  which  they  are  intended  to  secure  and  pro- 
tect, beyond  what  may  be  necessary  to  the  decision  of  the  case  before  the 
court.  Beyond  doubt  those  words  are  words  of  very  comprehensive  mean- 
ing, but  it  will  be  sufficient  to,  say  that  the  clause  plainly  and  unmistakably 
secures  and  protects  the  right  of  a  citizen  of  one  state  to  pass  into  any  other 
state  of  the  Union  for  the  purpose  of  engaging  in  lawful  commerce,  trade,  or 
business  without  molestation,  to  acquire  personal  property,  to  take  and  hold 
real  estate,  to  maintain  actions  in  the  courts  of  the  state,  and  to  be  exempt 
.  from  any  higher  taxes  or  excises  than  are  imposed  by  the  state  upon  its  own 
citizens:  Cooley,  Const.  Lim.  16;  Brown  v.  Maryland,  12  Wheat.  449.  Com- 
prehensive as  the  power  of  the  states  is  to  lay  and  collect  taxes  and  excises, 
it  is  nevertheless  clear,  in  the  judgment  of  the  court,  that  the  power  cannot 
be  exercised  to  any  extent  in  a  manner  forbidden  by  the  constitution ;  and 
inasmuch  as  the  constitution  provides  that  the  citizens  of  each  state  shall 
be  entitled  to  all  privileges  and  immunities  of  citizens  in  the  several  states, 

71 


562  MUNICIPAL    CORPORATIONS.  [CH.  XIX. 

§  592.  In  this  connection,  it  will  be  convenient  to  notice 
some  specific  state  constitutional  provisions  in  their  bearing  upon 
the  subject  of  taxation  and  local  assessments  by  municipal  cor- 
porations. The  late  constitution  of  Illinois  contained  a  provis- 
ion that "  The  corporate  authorities  of  *  *  *  cities  *  * 
may  be  vested  with  power  to  assess  and  collect  taxes  for  cor- 
porate purposes."     It  was  held  by  the  Supreme  Court  that 

it  follows  that  the  defendant  might  lawfully  sell,  or  offer  or  expose  for  sale, 
within  the  district  described  in  the  indictment,  any  goods  which  the  per- 
manent residents  of  the  state  might  sell,  or  offer  or  expose  for  sale,  in  that 
district,  without  being  subjected  to  any  higher  tax  or  excise  than  that  ex- 
acted by  law  of  such  permanent  residents :  State  v.  North  et  al.  27  Mo.  464; 
Fire  Department  v.  Wright,  3  E.  D.  Smith,  478;  Paul  *.  Virginia,  8  Wall. 
177."  Bradley,  J.,  regarded  the  act  of  the  Maryland  legislature  as  being  also 
in  violation  of  the  commerce  clause  of  the  constitution. 

In  sustaining  the  validity  of  a  corporation  tax  on  sales  of  produce  within 
the  limits  of  the  city  by  flat-boat  traders,  Mr.'  Chief  Justice  Sharkey  ob- 
serves: "The  ordinance  imposed  no  tax  for  the  privilege  of  introducing 
the  article,  but  a  tax  on  the  amount  of  sales.  The  power  of  a  state  to  tax 
the  merchandise  of  its  own  citizens  has  never  been  questioned,  nor  can  it 
be.  When  a  citizen  of  Ohio  comes  into  this  state,  and  makes  sales  of  his 
merchandise  here,  there  can  be  no  reason  why  he  shouid  be  exempted 
from  the  operation  of  the  state  laws.  This  position,  carried  to  its  utmost 
extent,  would  defeat  the  power  of  the  state  over  all  sales  of  merchandise 
within  its  territory;  it  would  only  be  necessary  for  the  merchant  to  claim 
a  residence  in  some  other  state,  and  the  power  of  the  state  would  be  at  an 
end: "   Harrison  v.  Vicksburg,  3  Sm.  &  Marsh.  (Miss.)  581,  586,  1844. 

The  legislature,  if  it  does  not  make  discriminations  in  violation  of  the 
state  constitution,  may  authorize  municipal  corporations  to  tax  transient 
traders  or  itinerant  dealers  and  pedlars ;  and  such  tax  is  not  in  violation  of 
the  constitution  of  the  United  States,  although  the  property  be  brought 
from  another  state,  provided,  it  must  be  added,  it  does  not  unlawfully  dis- 
criminate in  favor  of  the  resident,  and  against  the  non-resident,  citizen: 
Wynne  v.  Wright,  1  Dev.  &  Bat.  (North  Car.)  Law,  19,  1834;  Cowles  v.  Brit- 
tain,  2  Hawks  (North  Car.),  Law  and  Eq.  204;  Wilmington  v.  Roby,  8  Ire. 
(Law)  250, 1848;  Whitfield  v.  Longest,  6  ib.  268;  Plymouth  v.  Pettijohn,  4 
Dev.  591;  Corfield  v.  Coryell,  4  Wash.  C.  C.  380;  State  v.  City  Council,  10 
Rich.  (South  Car.)  Law,  240,  1857;  State  v.  Pinckney,  ib.  474;  City  Council 
fl.Ahrehs,  4  Strob.  (South Car.)  241;  Kellers  State,  11  Md.  525,  1857;  Ward 
v.  Morris,  4  H.  &  McH  (Md.)  340;  Ward  v.  Maryland,  31  Md  279;  reversed, 
Ward  v.  Maryland,  12  Wall.  418,  1870;  Oliver  v.  Washington  Mills,  11  Allen, 
268;  State  v.  North,  27  Mo.  464;  Wiley  v.  Parmer,  14  Ala.  627. 

Taxation  of  foreign  corporations  doing  business  in  the  state  permissible, 
thougi;  similar  local  corporations  are  not  subject  to  the  same  tax:  Com- 
monwealth v.  Milton,  12  B.  Mon.  212;  Slaughter's  Case,  13  Gratt.  (Va.)  767; 
Tatem  v.  Wright,  3  Zabr.  (N.  J.)  429;  Paul  v.  Virginia,  8  Wall.  168, 1868. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  563 

this  provision  had  the  effect  to  limit  taxation  by  municipalities 
to  local  or  corporate  purposes;  and  also  to  restrict  the  legisla- 
ture from  granting  the  right  of  local  or  corporate  taxation  to 
any  other  than  the  corporate  authorities  of  the  municipality 
or  place  to  he  taxed.1 

The  constitution  of  Arkansas  provides  that  "all  property 
shall  be  taxed  according  to  its  value,  the  manner  of  ascertain- 
ing which  to  be  as  the  general  assembly  shall  direct,  making 
the  same  equal  and  uniform  throughout  the  state.  No  one 
species  of  property  shall  be  taxed  higher  than  another  species 
of  property  of  equal  value.  The  general  assembly  shall  have 
power  to  tax  merchants,  hawkers,  pedlars,  and  privileges  in  such 
manner  as  may  be  prescribed  by  law."  liespecting  the  effect 
of  these  provisions,  the  Supreme  Court,  after  reviewing  the 
previous  adjudications,  which  were  not  in  all  respects  uniform, 
finally  decided  that  the  constitution  did  not  prohibit  the  legis- 
lature "  from  authorizing  counties  and  incorporated  towns  to  im- 
pose a  tax  upon  billiard  tables, •ten-pin  alleys,  taverns,  grocer- 
ies, and  the  like,  for  municipal  purposes,  and  as  a  police 
regulation  for  the  preservation  of  good  order;  that  these  pro- 
visions of  the  constitution  apply  to  state  revenue,  and  are  not 
applicable  to  taxes  levied  for  county  [and  city]  purposes."2 

§  593.  The  constitution  of  Ohio,  in  substance,  requires  "  the 
taxing"  by  the  legislature  of  "  all  property  by  an  uniform 

1  Constitution  of  Illinois,  Art.  9,  Sec.  5 ;  Howard  v.  Drainage  Company, 
51  111.  130 ;  ante,  p.  88,  Sec.  43 ;  Primm  v.  Belleville,  Illinois  Supreme  Court, 
April,  1872.  Under  this  provision  of  the  constitution,  it  was  held  that  a 
city  could  not  be  compelled  to  incur  debts  and  issue  its  bonds  without  the 
consent  of  the  corporate  authorities.  In  the  case  of  Lincoln  Park,  the  com- 
missioners were  created  by  the  legislature,  and  were  not  under  the  control 
of  the  corporation,  and  had  the  power  to  make  purchases  of  lands  for  the 
park ;  and  to  pay  for  such  purchases,  the  city  was  to  issue  to  them  its  bonds. 
The  court  held  that  they  were  not  the  corporate  authorities  of  the  city,  and 
refused  a  mandamus  to  the  city  authorities  to  issue  the  bonds:  People  v. 
Chicago,  51  111.  17.  But  where  the  people  of  the  corporation  accept  or 
adopt  the  act,  and  thereby  make  the  commissioners  corporate  authorities, 
they  may  be  vested  with  the  power  to  assess  and  collect  taxes :  People  v. 
Salomon,  51  111.  37.  See,  also,  Howard  v.  Drainage  Company,  supra;  Liv- 
ingston v.  Wider,  53  111.  302.    Infra,  Sec.  603. 

2  Washington  v.  State,  13  Ark.  752, 1853. 


564  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

rule ; "  but,  as  construed,  this  provision  does  not  necessarily 
exclude  the  right  to  tax  that  which  is  not  property,  nor  does  it 
cover  the  whole  ground  included  within  the  limits  of  the  taxing 
power.1  An  "assessment"  is  not  "taxing,"  within  the  mean- 
ing of  the  constitution; 2  nor  is  the  exacting  by  a  municipality 
of  money  for  granting  a  license  for  shows  and  exhibitions  a  "  tax- 
ing of  property,"  and  hence,  such  exaction  is  not  unconstitu- 
tional.3 But  although  this  constitutional  provision  does  not 
apply  to  "assessments"  it  does  apply  to  "all  taxes  either  for 
state,  county,  township,  or  corporation  purposes  ; "  and  it  de- 
prives the  legislature  of  the  plenary  power  it  would  otherwise 
have  over  the  subject  of  taxation,  and  of  the  right  (which  it 
would  otherwise  possess)  to  make  exceptions  and  exemptions. 
All  property  must  be  taxed. 4 

§  594.  A  provision  in  the  constitution  of  Louisiana  declar- 
ing that  "taxation  shall  be  equal  and  uniform  throughout  the 
state"  even  if  it  extends  to  municipal  taxation,  is  not  violated 
by  a  legislative  provision  authorizing  the  taxation  by  munici- 
palities of  callings,  trades  and  professions  exercised  within 
their  limits  ;  and  taxation  of  this  character  is  "  equal  and  uni- 
form" if  all  persons  engaged  in  the  same  business  are  taxed 
alike.5 

1  Constitution  of  Ohio,  Art.  12,  Sec.  2 ;  Zanesville  v.  Richards,  5  Ohio  St. 
589,  593,  1855;  Baker  v.  Cincinnati,  11  Ohio  St.  534,541,  per  Gholson,3.; 
Bank  v,  Hines,  3  Ohio  St.  1 ;  Hill  v.  Higdon,  5  Ohio  St.  243 ;  ib.  520. 

5  Reeves  v.  "Wood  County,  8  Ohio  St.  333  ;  9  ib.  520  ;  Northern  Railroad 
Company  v.  Connelly,  10  Ohio  St.  159,  and  cases  cited  ;  People  v.  Mayor, 
&c.  of  Brooklyn,  4  N.  Y.  419,  440. 

s  Baker  v.  Cincinnati,  11  Ohio  St,  534;  correcting  and  qualifying  report  in 
Mays  v.  Cincinnati,  1  ib.  268,  273. 

4  Zanesville  v.  Richards,  5  Ohio  St.  589,  592,  1855,  per  Ranney,  C.  J. ;  Hill 
v.  Higdon,  ib.  243,  246. 

6  Merriam  v.  New  Orleans  (billiard  tables),  14  La.  An.  318  ;  New  Orleans 
v.  Staiger,  10  ib.  68  ;  New  Orleans  v.  South  Bank,  11  ib.  41 ;  New  Orleans  v. 
Turpin  (tax  on  auctioneers),  13  ib.  56,  1858 ;  Municipality  v.  Dubois  (special 
tax  on  livery  stable  keepers),  10  ib.  56 ;  New  Orleans  v.  Bank,  ib.  735 ;  Ben- 
ton Street  Case,  9  ib.  446.    Infra,  Sec.  600. 

Whether  the  "equality"  and  "uniformity"  of  taxation  required  by  the 
constitution  extends  to  municipal  taxation :  Lynch  v.  Alexandria,  9  La.  An. 
498 ;  Municipality,  &c.  v.  White,  ib.  446  ;  Cumming  v.  Police  Jury,  ib.  503. 
But  see  later  case  of  New  Orleans  v.  Elliott  (paving  street),  10  ib.  59,  and 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  565 

§  595.  Unless  there  be  some  constitutional  restriction,  the 
legislature  may  authorize  a  municipality  to  levy  and  collect 
retrospective  taxes,  and  for  this  purpose  use  the  assessment  rolls 
of  a  previous  year.1 

cases  above  cited.  Street  Case,  20  La.  An.  497,  1868  ;  Draining  Company 
Case,  11  La.  An.  338,  1856;  Wallace  v.  Shelton  (levee 'assessment),  14  La. 
An.  498;  Municipality  «.  Dunn,  10*.  57;  Same  v.  Guillotte,  14  ib.  297,  1859; 
State  v.  Volkman,  20  ib.  585.  It  is  held  that  the  constitutional  provision 
quoted  did  not  prohibit  the  legislature  from  authorizing  a  municipal  cor- 
poration to  require  the  payment  of  $500  as  the  price  of  a  license  for  theatre 
exhibitions;  the  court  putting  its  judgment  on  the  ground  that  the  exac- 
tion of  a  price  for  the  license  so  granted  was  not,  in  the  sense  of  the  consti- 
tution, a  tax:  Charity  Hospital  v.  Stickney,  2  La.  An.  550,  1847;  Municipal- 
ity v.  Duncan,  ib.  182.  In  Virginia,  it  is  considered  that  the  constitutional 
requirement  of  equality  and  uniformity  does  not  require  the  taxes  on  all 
licenses  to  be  equal  and  uniform:  Slaughter  v.  Common  wealth,  13  Gratt. 
(Va.)  767 ;  Gilkerson  v.  Justices,  &c.  ib.  577.  Construction  of  provision  in 
the  constitution  of  Massachusetts  requiring  taxation  to  be  "reasonable  and 
proportional:"  Merrick  v.  Amherst,  13  Allen,  500.  In  this  case  it  was  held 
that  the  legislature  might  authorize  a  town  to  raise  money  by  taxation  for 
an  agricultural  college  to  be  established  therein:  Ib.  In  Pennsylvania 
(whose  constitution,  however,  contains  no  express  provision  requiring 
equality  of  taxation),  an  act  of  the  legislature  was  held  constitutional  which 
compelled  the  property  owners  of  the  county  town  to  contribute,  in  the  way 
of  taxes,  $500  annually  for  several  years,  over  and  above  the  usual  county 
rates  and  levies,  to  aid  in  defraying  the  expenses  of  erecting  a  court  house 
and  jail  therein,  then  in  process  of  erection :  Kirby  v .  Shaw,  19  Pa.  St.  258, 
1852.  See  Schenley  v.  Allegheny,  25  ib.  128.  Compare,  Hammett  v.  Phila- 
delphia, 65  Pa.  St.  146.  As  to  construction  of  provision  requiring  "the  rule 
of  taxation  to  be  uniform,  and  to  be  levied  upon  such  property  as  the  legis- 
lature shall  prescribe"  (constitution  of  Wisconsin,  Art.  VIII.  Sec.  1):  Carter 
v,  D6w  (dog  license  tax  valid),  16  Wis.  298/566;  Fire  Department  v.  Mil- 
waukee (foreign  insurance  company  tax  valid),  ib.  136;  Railroad  Company 
v.  Supervisors,  3  Am.  Law  Reg.  679;  Weeks  v.  Milwaukee,  10  Wis.  242,  282; 
State  v.  Portage,  12  ib.  562;  Bond  v.  Kenosha,  17  ib.  284;  Dean  v.  Gleason, 
16  ib.  116;  Brightman  v.  Kirner,  22  ib.  54.  And  see  Gilman  v.  Sheboygan, 
2  Black  (U.  S.),  510;  Muscatine  v.  Railroad  Company,  1  Dillon,  C.  C.  R.  536. 
Uniformity  of  taxation  of  corporations  required  by  the  Iowa  constitution  : 
Muscatine  v.  Railroad  Company,  supra;  Davenport  v.  Railroad  Company, 
16  Iowa,  348,  the  opinion  of  Wright  and  Billon,  JJ.,  subsequently,  in  1871, 
approved  by  a  majority  of  the  court,  in  a  case  not  yet  reported.  And  see 
Express  Company  v.  Ellyson,  28  Iowa,  370,  380. 

1  Municipality  v.  Wheeler,  10  La.  An.  745;  New  Orleans  v.  Poutz,  14  ib. 
853.  Ante,  p.  92,  Sec.  46.  In  Wisconsin  it  was  held  that  an  act  passed  in 
1862  (made  necessary  to  avoid  difficulties  growing  out  of  previous  uncon- 
stitutional taxation),  providing  for  the  re-assessment  of  taxes  of  1854,  '55, 
'56,  and  '57  in  one  of  the  cities  of  that  state,  was  constitutional :  Tallman  v. 
Janesville,  17  Wis.  71, 1863. 


566  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

§  596.  The  expense  of  making  local  improvements,  such  as 
grading  and  paving  or  otherwise  improving  streets  and  side- 
walks, constructing  drains,  sewers,  and  the  like,  is  very  gener- 
ally met,  in  whole  or  in  part,  by  local  assessments  authorized  to 
be  made  upon  persons  or  property  thereby  benefited,  or  sup- 
posed to  be  benefited.  Legislation  of  this  character,  both  in 
respect  to  its  justice  and  its  constitutional  validity,  has  been 
extensively  discussed  by  the  judicial  tribunals  of  perhaps 
nearly  every  state  in  the  Union.1  The  courts  seem  to  be  very 
generally  agreed  that  the  authority  to  require  the  property 
specially  benefited  to  bear  the  expense  of  local  improvements 
is  a  branch  of  the  taxing  power,  or  included  within  it.  And 
the  many  cases  which  have  been  decided  fully  establish  the 
general  proposition  that  a  charter  or  statute  authorizing  the 
municipal  authorities  to  open  or  establish  streets,2  or  to  make 
local  improvements  of  the  character  above  mentioned,  and  to 
assess  the  expense  upon  the  property  which,  in  the  opinion  of 
the  designated  tribunal  or  officers,  shall  be  benefited  by  the 
improvement,  in  proportion  to  the  amount  of  such  benefit,  or 
upon  the  abutters  in  proportion  to  benefits  or  frontage  or 
superficial  contents,  is,  in  the  absence  of  some  special  consti- 
tutional restriction,  a  valid  exercise  of  the  power  of  taxation. 
Whether  the  expepse  of  making  such  improvements  shall  be 
paid  out  of  the  general  treasury,  or  be  assessed  upon  the  prop- 
erty benefited  or  legislatively  declared  to  be  benefited,  and,  if 

1  In  holding  that  the  legislature  may  constitutionally  confer  upon  mu- 
nicipal corporations  the  power  to  improve  streets  at  the  expense  of  the  ad- 
joining proprietors,  the  Supreme  Court  of  Missouri  say:  "The  subject  has 
been  thoroughly  discussed,  and  every  principle  bearing  on  it  severely  ana- 
lyzed, in  almost  every  state  of  the  Union  where  the  power  has  been  exer- 
cised ;  and  it  is  now  as  firmly  established  as  any  other  doctrine  of  American 
law : "  Per  Richardson,  J.,  in  Palmyra  v.  Morton,  25  Mo.  593,  1857 ;  see,  also, 
in  the  same  state,  Egyptian  Levee  Company  v.  Hardin,  27  Mo.  495 ;  St. 
Joseph  v.  O'Donoghue,  31  Mo.  345, 1861 ;  Lockwood  v.  St.  Louis,  24  Mo.  20, 
1856;  re-affirmed,  St.  Louis  v.  Clemens,  36  Mo.  467,  1865;  and  see  authori- 
ties cited  infra.  Parliament  has  the  ppwer,  and  for  a  long  time  has  exer- 
cised it,  of  assessing  property  for  benefits  conferred :  Viner's  Abr.  "  Sewers ;" 
Comyn's  Dig.  "Sewers." 

2  As  to  apportioning  the  damages  for  opening  streets  among  the  lots  or  prop- 
erty benefited,  see  chapter  on  Eminent  Domain,  ante,  Sec,  481,  and  authorities 
there  cited. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  567 

in  the  latter  mode,  whether  the  assessment  shall  be  upon  all 
property  found  to  be  benefited,  or  alone  upon  the  abutters, 
according  to  frontage  or  according  to  the  area  of  their  lots,  is, 
in  all  cases,  a  question  of  legislative  expediency,  unless  there 
be  some  special  restraining  constitutional  provision  upon  the 
subject.1  Whatever  limitation  there  is  upon  the  power  of  tax- 
,  ation  (which  includes  the  power  of  apportioning  taxation)  must 
be  found  in  the  nature  of  the  power,  and  in  express  constitu- 
tional provisions.2 

1  There  has  been  much  controversy  upon  the  point  whether  it  is  more 
just  that  the  adjacent  property  should  bear  the  whole  expense  of  sidewalks 
and  other  local  improvement  than  that  it  should  be  borne  by  the  corpora- 
tion at  large.  See,  for  example,  opinion  of  Paine,  J.,  attacking  (Weeks  v. 
Milwaukee,  10  Wis.  258),  and  of  Beck,  J.,  defending,  local  assessments  upon 
the  abutters:  Warren  v.  Henly,  31  Iowa,  1870  (not  yet  reported).  See, 
also,  Philadelphia  ».  Tryon,  35  Pa.  St.  401 ;  Lexington  v.  McQuillan's  Heirs, 
9  Dana  (Ky.),  513;  People  v.  Mayor,  &c.  of  Brooklyn,  4  K  Y.  419.  In  Lou- 
isiana, the  equitable,  and,  it  seems  to  the  author,  just,  rule  is  adopted,  of 
compelling  the  owner  of  property  to  pay  a  portion  (one-third)  of  the  cost 
of  improvements  in  front  of  it,  and  the  residue  to  be  paid  by  the  munici- 
pality. In  reference  to  this  subject,  Slidell,  C.  J.,  remarked:  "I  must  repeat 
my  conviction  that  the  system  of  paying  for  local  improvements  wholly 
out  of  the  general  treasury  is  inequitable,  and  will  result  in  great  extrava- 
gance, abuse,  and  injustice.  I  think  the  system  of  making  particular  local- 
ities, which  are  specially  benefited,  bear  a  special  portion  of  the  burden,  is 
safer,  and  more  just  to  the  citizens  at  large,  by  whose  united  contributions 
the  city  treasury  is  supplied.  What  is  taken  out  of  that  treasury  is  taken 
out  of  the  pockets  of  all  the  proprietors:"  Municipality  v.  Dunn,  10  La.  An. 
57,  1855.    See  Municipality  v.  White,  9  ib.  447. 

If  the  charter  requires  the  assessment  to  be  according  to  benefits  received, 
it  is  not  sufficient  to  assess  according  to  frontage,  and  the  report  of  the  com- 
missioners of  assessment  should  show  that  the  assessment  was  made  upon 
the  right  basis:  State  v.  Hudson,  5  Dutch.  (N.  J.).  104,  1860;  Same  v.  Same, 
ib.  115;  State  v.  Bergen,  ib  266.  Difference  between  "benefits"  and 
"frontage:"   State  v.  Hudson,  supra;  Clapp  v.  Hartford,  35  Conn.  66. 

Construction  of  word  "fronting." — Authority  to  pave  a  highway  at  the  ex- 
pense of  the  fronting  thereon,  does  not  authorize  an  assessment  against  a  lot 
which  is  separated  from  the  highway  so  paved,  by  a  railway  running  side 
by  side  therewith,  which  is  liable  to  be  "fenced  up  at  any  moment."  The 
court  add:  "  We  are  unable,  indeed,  to  see  how  it  can  be  said  that  this  lot 
fronts  on  the  highway  in  question,  when  its  real  front  is  on  another  public 
highway — the  railroad — forty-seven  feet  south  of  it:''  Philadelphia  v. 
•Eastwick,  35  Pa.  St.  75,  1860.  See,  also,  Philadelphia  v.  Railroad  Company, 
33  ib.  41. 

2  People  v.  Mayor,  &c.  of  Brooklyn,  4  N.  Y.  (4  Comst.)  419, 1851,  which  is 
the  leading  case  on  this  subject.  See  chapter  on  Eminent  Domain,  Sec. 
481.    Speaking  of  the  constitution  of  New  York,  in  this  respect,  Mr.  Justice 


568  MUNICIPAL   CORPORATIONS.  [CH.  XI. 

§  597.  Upon  the  kindred  question,  whether  it  is  competent 
for  the  legislature  to  require  the  abutter  to  bear  the  whole  expense 
of  the  improvement  in  front  of  his  particular  property, —  in 

Buggies,  in  the  case  just  cited,  says:  "It  is  not  ordained  (by  the  constitu- 
tion) that  taxation  shall  be  general,  so  as  to  embrace  all  persons  or  all  tax- 
able property  within  the  state,  or  within  any  district  or  territorial  division  of 
the  state ;  nor  that  it  shall  or  shall  not  be  numerically  equal,  as  in  the  case 
of  a  capitation  tax;  nor  that  it  must  be  in  the  ratio  of  the  value  of  each 
man's  land,  or  of  his  goods,  or  of  both  combined;  nor  that  a  tax  'must  be 
co-extensive  with  the  district,  or  upon  all  the  property  in  a  district  which 
has  the  character  of,  and  is  known  to  the  law  as,  a  local  sovereignty.'  Nor 
has  the  constitution  ordained  or  forbidden  that  a  tax  shall  be  apportioned 
according  to  the  benefit  which  each  tax-payer  is  supposed  to  receive  from 
the  object  on  which  the  tax  is  expended.  In  all  of  these  particulars,  the 
power  of  taxation  (in  this  state)  is  unrestrained : "  4  N.  Y.  419,  427.  The 
case  of  the  People  v.  Mayor,  &c.  of  Brooklyn,  was  recognized  and  followed 
vin  Brewster?;.  Syracuse,  19  N.  Y.  116, 118;  Guilford  v.  Supervisors,  &C.13 
N.  Y.  (3  Kern.)  143;  Sun  Insurance  Company  v.  Mayor,  &c  8  N.  Y.  241, 
251;  Litchfield  v.  Vernon,  41  N.  Y.  123,  1869;  Howell  v.  Buffalo,  37  N.  Y. 
267,1868.  May  be  assessed  against  owner:  Chapman  p.  Brooklyn,  40  N.  Y. 
372. 

Not  only  can  the  legislature  authorize,  but  it  may,  in  the  absence  of  any 
special  restriction  upon  its  power  in  this  respect,  compel  a  municipal  cor- 
poration to  lay  out  and  improve  highways  or  streets  within  its  limits,  with- 
out its  consent  or  a  vote  of  its  citizens ;  and  for  this  purpose  it  may 
provide  for  raising  the  money  by  a  sale  of  the  bonds  of  the  municipality, 
due  at  a  future  period,  and  to  be  paid  by  taxation;  and  if  the  local  authori- 
ties refuse  to  issue  the  bonds,  the  duty  may  be  enforced  by  mandamus: 
People  ex  rel.  McLean  v.  Flagg,  N.  Y.  Court  of  Appeals,  11  Am.  Law  Reg. 
(N.  S.)  80.    See,  also,  ante,  pp.  88-90,  Sec.  43,  and  cases  cited. 

In  Pennsylvania,  local  assessments  on  the  property  benefited  are  "  clearly 
within  the  competency  of  the  legislature" — are  a  legitimate  exercise  of  the 
taxing  power — and  "have  been  many  times  sustained  by  this  court:"  Per 
Woodward,  J.,  in  Philadelphia  v.  Tryon,  35  Pa.  St.  401,  404,  1860.  See,  in 
same  state,  O'Connor  v.  Pittsburg,  6  Harris,  187;  Schenley  v.  Allegheny,  25 
Pa.  St.  128,  1854.  See  Kirby  v.  Shaw,  19  Pa.  St.  258,  as  to  Pennsylvania  con- 
stitution, and  the  absence  of  any  provision  therein  requiring  equality  of  tax- 
ation: Comp.  Hammettfl.  Philadelphia,  infra.  The  assessment  may  be  upon 
the  abutter,  "in  proportion  to  the  distance  in  feet  which  the  property  may 
abut"  on  the  improvement:  Pittsburg  v.  Woods,  44  Pa.  St.  113,  1862,  ap- 
proves People  v.  Mayor,  &c.  of  Brooklyn,  supra;  Magee  v.  Commonwealth, 
46  ib.  358;  Wray  v.  Pittsburg,  46  ib.  365  (this  case  refers  to  O'Connor  v. 
Pittsburg,  supra,  and  says  the  charter  was  altered  after  it  was  decided) ; 
McGonigle  v .  Allegheny,  44  Pa.  St.  118.  May  be  made  a  lien  upon  the  prop- 
erty benefited:  McMasters  v.  Commonwealth,  3  Watts  (Pa.),  292,  1834; 
Greensburg  v.  Young,  53  Pa.  St.  280,  construing  charter  to  authorize  assess- 
ment upon  the  abutter;  Stroud  v.  Philadelphia,  61  Pa.  St.  255;  Fenelon's 
Petition,  7  Barr,  175. 


CH.  XIX.J      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  569 

other  words,  whether  the  abutters  can  be  made  to  pay  the  cost 
of  the  improvement  in  front  of  their  respective  lots — (instead 
of  having  the  whole  expense  of  the  improvement  assessed  or 

In  Philadelphia  v.  Tryon,  above  cited,  Mr.  Justice  Woodward  thus  vindi- 
cates the  justice  of  such  assessments :  "  Local  impositions  for  grading,  paving, 
sewerage,  and  the  like,"  he  says,  "  have  been  many  times  sustained  by  this 
court,  and  are,  in  the  long  run,  perfectly  fair,  for  they  enter  into  and  en- 
hance the  value  of  the  property  assessed.  The  public,  it  is  true,  are  bene- 
fited, but  so  is  the  individual,  and,  as  an  owner  of  urban  property,  he  is 
further  benefited,  when,  in  due  time,  the  same  tax  falls  on  his  neighbor:'' 
35  Pa.  St.  401, 404, 1860.  The  foregoing  cases  in  Pennsylvania  should  be  read 
in  the  light  of  Hammett  v.  Philadelphia,  65  Pa.  St.  146;  S.  C.  8  Am.  Law 
Reg.  (N.  S.)  411.  It  is  admitted,  in  this  case,  that  municipalities  may  con- 
stitutionally be  authorized  to  make  local  assessments  to  pay  for  local  im- 
provements, but  it  is  denied  that  the  legislature  can  authorize  a  local 
assessment  to  pay  for  an  improvement  not  local,  but  made  for  the  general  or 
public  benefit.  Applying  this  principle,  it  was  held  that  local  assessments 
may  be  made  for  paving  a  street,  but  that  when  a  street  is  once  opened  and 
paved,  and  is  thus  part  of  the  highways  of  the  city,  the  re-paving  of  it  can- 
not be  assessed  on  the  adjoining  lots,  but  is  part  of  the  general  duty  of  the 
corporation.  Compare,  Lafayette  v.  Fowler,  34  Ind.  140 ;  Williams  v.  Detroit, 
2  Mich.  560, 1861 ;  Hoyt  v.  East  Saginaw,  19  Mich.  39 ;  Municipality  v.  Dunn, 
10  La.  An.  57,  1855,  cited  infra. 

The  legislature  may,  in  Massachusetts,  authorize  the  cost  of  opening, 
widening,  and  grading  streets  to  be  assessed  upon  the  estates  that  will 
abut  on  the  street  afterwards:  Dorgan  v.  Boston,  12  Allen,  223. 

In  Kentucky,  local  improvements  at  the  expense  of  the  abutters  or  prop- 
erty benefited  was  first  decided  to  be  constitutional,  in  the  case  of  Lexing- 
ton v.  McQuillan's  Heirs,  9  Dana,  514, 1840,  in  which  the  subject  is  discussed 
with  great  fulness  and  ability  by  Robertson,  0.  J.  See,  also,  Louisville  v. 
Hyatt,  2  B.  Mon.  177. 

A  statute  authorizing  a  municipal  corporation  to  direct  any  street  opened 
by  individuals  on  their  own  lands  and  dedicated  to  the  public,  to  be  graded 
and  made  fit  for  travel,  and  to  assess  the  whole  expense  thereof  on  them, 
is  not  in  conflict  with  any  provision  of  the  constitution  of  New  Jersey: 
State  v.  Dean,  3  Zabr.  (N.  J.)  335,  1852;  Holmes  v.  Jersey  City,  1  Beasl.  (N. 
J.)  264. 

Power  of  local  taxation  for  local  purposes  sustained,  and  the  cases  de- 
cided in  Virginia  on  the  subject,  collected  and  referred  to:  Gilkerson  v. 
Justices,  13  Gratt.  (Va.)  577, 1856. 

In  Maryland,  the  Court  of  Appeals  has  declared  the  constitutionality  of 
laws  which  impose  all  of  the  expenses  or  damages  caused  by  opening  a 
street  upon  those  immediately  benefited,  instead  of  the  community  at 
large:  Alexanders.  Baltimore,  5  Gill  (Md.),  383,  1847;  followed,  Moale  v. 
Baltimore,  5  Md.  314,  1854.  This  last  case  expressly  approved  People  v. 
Brooklyn,  supra.    See,  also,  Howard  v.  The  Church,  18  Md.  451. 

In  Mississippi,  it  is  also  held  that  there  is  nothing  in  the  constitution  of 
that  state  which  deprives  the  legislature  of  the  power  to  impose  a  tax  on  a 

72 


570  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

apportioned  among  all,  on  the  basis  of  frontage,  or  of  benefits), 
there  has  been  more  diversity  of  opinion.  In  a  case  in  Michi- 
gan involving  this  precise  inquiry,  the  four  judges  then  consti- 
tuting the  Supreme  Court  were  equally  divided  in  judgment.1 

local  district  for  the  construction  of  local  public  improvements;  and  that 
municipal  corporations  may  be  constitutionally  authorized  to  assess  taxes 
upon  lots  for  the  purpose  of  making  improvements  upon  the  streets  in 
front  thereof:  Williams  v.  Cammack,  27  Miss.  (5  Cush.)  209,  224,  1854 
(levee  tax) ;  following  People  v.  Mayor,  &c.  of  Brooklyn,  supra.  S.  P. 
Alcorn  o.  Horner  (levee  tax),  38  Miss.  652,  1860;  Smith  v.  Aberdeen,  25 
Miss.  458, 1853.  The  objection  that  such  a  tax  is  not  equal  and  uniform,  the 
the  court  considered  not  to  be  well  taken. 

In  Ohio,  lot  owners  may  be  constitutionally  required  to  drain  and  fill  up 
their  lots,  and  the  power  may  be  delegated  to  the  municipal  authorities. 
Legislation  of  this  character  is  sustained  as  a  legitimate  exercise  of  the 
police  power  for  the  preservation  of  the  public  health :  Bliss  v.  Kraus,  16 
Ohio  St.  54, 1864.  As  to  local  assessments:  Creighton  v.  Scott,  14  Ohio  St. 
438;  Scoville  v.  Cleveland,  1  Ohio  St.  126,  1853;  Cleveland  v.  Wick,  18  Ohio 
St.  303;  Bliss  v.  Kraus,  16  Ohio  St.  54,  1854. 

In  South  Carolina,  municipal  corporations  may  constitutionally  be  author- 
ized to  levy  taxes  or  assessments  for  the  purposes  of  drains  and  pavements, 
and  without  the  intervention  of  the  jury:  Cruikshanks  v.  City  Council,  1 
McCord  (South  Car.),  360,  1821. 

That  the  legislature  possesses  the  power,  unless  specially  restrained,  to 
require  abutters  or  owners  of  property  specially  benefited  to  construct  side- 
walks or  other  local  improvements,  has  also  been  decided  in  the  following 
cases:  White  v.  Mayor,  2  Swan  (Tenn.),  364,  1852;  Mayberry  v.  Franklin,  6 
Humph.  368;  Washington  v.  Mayor,  &c.  1  Swan  (Tenn.),  177;  Warren  v. 
Henly,  31  Iowa,  1870  (not  yet  published);  S.  C.  5  West.  Jurist,  101;  Mc- 
Gehee  v.  Mathis  (levee  tax),  21  Ark.  40,  1860;  Nichols  ».  Bridgeport,  23 
Conn.  189,  207,  approving  People  v.  Mayor,  &c.  of  Brooklyn,  supra.  S.  P. 
Cone  v.  Hartford,  28  Conn.  363,  374;  State  v.  Portage,  12  Wis.  562 ;  Indian- 
apolis v.  Mansur,  15'Ind.  112;  Lafayette  v.  Fowler,  34  Ind.  140;  Blanding  v. 
Burr,  13  Cal.  343;  Street  Railway  Appeal,  32  Cal.  499.  Assessments  on 
adjoining  lots,  for  paving,  held  constitutional  in  the  Detroit  charter:  Wil- 
liams v.  Detroit,  2  Mich.  560,  1853.  See  Woodbridge  v.  Detroit,  8  Mich.  274; 
Hoyt  v.  East  Saginaw,  19  Mich.  39. 

As  to  power  to  pave  street  occupied  by  a  plank  road  company  under  legis- 
lative authority,  and  assess  the  amount  upon  the  abutters :  Bagg  v.  Detroit, 
5  Mich.  336.  Turnpike  road:  State  v.  New  Brunswick,  1  Vroom  (N.  J.),  395 
(a  grading  and  paving  assessment).  Local  assessment  on  railroad  property : 
Railroad  Company  v.  Connelly,  10  Ohio  St.  159;  Railroad  Company  v. 
Spearman,  12  Iowa,  112.    Supra,  p.  520,  n. 

1  Woodbridge  v.  Detroit,  8  Mich.  274,  1860,  Martin,  C.  J.,  and  Manning,  J., 
holding  that  the  provision  of  the  charter  of  Detroit  authorizing  the  council 
to  cause  streets  to  be  improved,  and  to  assess  the  whole  expense  in  front  of 
each  lot  upon  the  lot,  and  make  the  same  a  lien  thereon,  was  valid :  Camp- 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  571 

In  Wisconsin1  and  in  Iowa2  the  power  of  the  legislature,  in  the 
absence  of  special  restriction,  to  require  local  improvements  to 
be  made  in  this  manner  has  been  expressly  adjudged,  and 
in  some,  and  perhaps  most,  of  the  other  states  the  power  has 
been  conferred,  and  seems  to  have  been  exercised  without 
being  judicially  questioned.  It  may  be  true  that  in  some  in- 
stances more  hardship  will  be  occasioned  by  requiring  each 
owner  to  make  or  pay  for  the  improvement  in  front  of  his 
own  property,  than  if  the  cost  were  assessed  on  the  basis  of 
frontage  or  of  supposed  benefits  received,  still  it  seems  to  the 
author  difficult  to  find  satisfactory  and  solid  grounds  on  which 
to  discriminate  the  cases  so  as  to  hold  that  one  is  within  the 
constitutional  power  of  the  legislature  and  the  other  is  not. 

§  598.  Whether  the  constitutions  of  the  various  states  do  con- 
tain provisions  which  prohibit  the  legislature  from  assessing  the 
expense  of  local  improvements  upon  the  property  in  the  vicini- 
ty has  given  rise  to  numerous  decisions.  In  the  leading  case 
it  was  held,  upon  great  consideration,  in  an  opinion  the  reason- 
ing and  conclusion  of  which  have  been  almost  everywhere  ad- 
mitted to  be  sound,  that  legislation  of  this  character  did  not 
contravene  the  constitutional  provision  that  "no  person  shall 

bell  and  Christiancy,  JJ.,  contra.  The  discussions  in  the  several  opinions  of 
the  judges  are  very  interesting  and  instructive.  Mr.  Justice  Cooley,  in  his 
treatise,  expresses  a  decided  opinion  against  the  constitutionality  of  such 
enactment,  his  ground  of  objection  being  that  the  requirement  is  arbitrary, 
and  disregards  the  principles  of  uniformity  and  apportionment  of  burden  : 
Cooley,  Const.  Lim.  508.  See  on  general  subject  of  constitutional  power, 
Hoyt  v.  East  Saginaw,  19  Mich.  39. 

1  Weeks  v.  Milwaukee,  10  Wis.  258.  Paine,  J.,  makes  a  strong  argument 
against  all  local  assessments  on  principle,  but  considers  the  right  to  make 
them  as  recognized  by  the  constitution  of  the  state,  which  requires  the 
legislature,  in  organizing  municipal  corporations,  "to  restrict  their  power 
of  taxation,  assessment,"  &c.     See  ante,  p.  67,  Sec.  27. 

8  Warren  v.  Henly,  31  Iowa  (not  yet  published) ;  S.  C.  5  Western  Jurist, 
101, 1870 :  In  this  case  a  provision  of  the  charter  of  the  city  of  Lyons,  au- 
thorizing the  city  council  to  cause  the  streets  to  be  paved  and  the  pavement 
repaired,  and  to  that  end  to  require  the  adjacent  owners  to  pave  or  repair 
one-half  in  width  of  the  street  contiguous  to  their  respective  lots,  and  in 
case  of  neglect,  authorizing  the  city  to  do  the  work  and  assess  the  expense 
as  a  tax  on  the  lots,  was  held  not  to  be  unconstitutional. 


572  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

be  deprived  of  life,  liberty,  or  property,  without  due  process  of 
law ;  nor  shall  private  property  be  taken  for  public  use  without 
just  compensation."1 

§  599.  The  constitution  of  California  requires  that  "  taxation 
shall  be  equal  and  uniform  throughout  the  state,"  and  that  "  all 
property  in  the  state  shall  be-  taxed  in  proportion  to  its  value." 
The  word  taxation,  as  here  used,  was  held,  by  the  Supreme 
Court  of  that  state,  to  refer  to  general  taxes  to  defray  the  or- 
dinary expenses  of  the  state  and  its  subordinate  local  govern- 
ments, and  not  to  assessments  for  local  improvements ;  that 
taxation  was  intended  to  be  exercised  upon  the  basis  of  value, 
so  as  to  secure  equality  and  uniformity;  that  assessments 
(although  a  branch  of  the  taxing  power)  need  not  necessarily 
be  exercised  on  the  ad  valorem  principle,  but  the  legislature  is 
at  liberty  to  adopt  a  different  mode  or  basis  of  apportionment, 
such  as  frontage,  benefits  received,  or  superficial  contents.2 

1  People  v.  Mayor,  &c.  of  Brooklyn,  4  N.  Y.  (4  Comst.)  419, 1851. 

2  Constitution  of  California,  Art.  11,  Sec.  13 ;  Emery  v.  Gas  Company,  28 
Cal.  345,  1865.  The  opinion  of  Sawyer,  J.,  contains  an  exceedingly  clear 
and  able  discussion  of  the  subject,  in  the  light  of  the  adjudged  cases.  See, 
also,  Hart  v  Gaven,  12  Cal.  476 ;  Argenti  v.  San  Francisco,  16  Cal.  255 ; 
People  v.  Eailroad  Co.  35  Cal.  606;  Burnett  v.  Sacramento,  12  Cal.  76,  1859; 
Blanding  v.  Burr,  13  Cal.  343 ;  Walsh  v.  Matthews,  29  Cal.  123.  Compare 
Creighton  v.  Manson,  27  Cal.  613.  "  Uniformity  "  of  assessment,  and  mode  of 
ascertaining  benefits :  Street  Railway  Appeal,  32  Cal.  499, 1867.  Eight  to  as- 
sess street  railway  company  as  one  of  the  parties  benefited  by  local  improve- 
ment: lb;  State  v.  Newark,  3  Dutch.  (N.J.)  186;  Taylor  v.  Palmer,  31 
Cal.  240, 1866,  as  to  making  assessments  a  personal  charge. 

The  constitutional  provision  mentioned  in  the  text  further  construed : 
People  v.  Railroad  Company,  35  Cal.  606 ;  People  ».  McCreery,  34  Cal.  43. 
In  the  case  last  cited  it  is  held  that  the  power  of  the  legislature  over  the 
whole  subject  of  taxation,  including  the  property  to  be  charged,  the  amount 
of  the  tax,  the  mode  of  levying,  assessing,  and  collecting  it,  etc.,  is  as  ample 
as  over  any  other  matter  that  is  a  proper  subject  of  legislative  action.  The 
provisions  of  section  thirteen,  Article  11  of  the  constitution  are  limitations, 
and^not  grants  of  power ;  but  as  limitations,  are,  according  to  their  terms, 
mandatory  upon  the  legislature.  And  it  is  also  held:  first,  that  by  the 
words  " all  property  in  this  state"  is  meant  all  private  property,  or  all 
property,  other  than  that  belonging  to  the  United  States  or  this  state, 
or  that  which  is  public  property;  second,  that  the  words  "taxation 
shall  be  equal  and  uniform  throughout  the  state,"  relate  to  taxation  of 
property,  and  that  the  legislature  has  no  power  to,  exempt  any  private 
property  in  this  state  from  taxation ;  and  third,  that  the  rate  of  taxation  on 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  573 

§  600.  So  in  Louisiana,  according  to  the  later,  if  not  the 
earlier,  cases,  local  municipal  assessments  for  local  improve- 
ments are  valid,  although  the  constitution  provides  that  all 
taxation  shall  be  equal  and  uniform  throughout  the  state :  such 
assessments  are  not  taxation  within  the  meaning  of  the  consti- 
tution requiring  uniformity  of  taxation.1 

§  601.  So,  in  Missouri,  assessments  against  adjacent  owners 
for  benefits  received  from  the  opening,  &c,  of  streets  are  a  valid 
exercise  of  the  taxing  power,  and  do  not  contravene  the  pro- 
vision of  the  constitution  "that  all  property  subject  to  taxation 
shall  be  taxed  in  proportion  to  its  value."2 

§  602.  So  a  provision  of  the  constitution  of  Kansas,  under  the 
title  "Finance  and  Taxation,"  that  "the  legislature  shall  pro- 
vide for  a  uniform  and  equal  rate  of  assessment  and  taxation," 
and  another  section,  under  the  title  "  Corporations,"  that 
"Provision  shall  be  made  by  general  law  for  the  organization 
of  cities,  towns,  and  villages,  and  their  power  of  taxation,  as- 
sessment, &c,  shall  be  so  restricted  as  to  prevent  the  abuse  of 
such  power,"  were  held  not  to  deprive  the  legislature  of  the 
power  to  authorize  local  improvements  of  streets  to  be  charged 
upon  the  adjacent  property.     In  the  latter  section,  the  word 

property  for  state  purposes  shall  be  uniform  throughout  the  state  :  People 
v.  Coleman,  4  Cal.  46,  and  High  v.  Shoemaker,  22  Cal.  363,  so  far  as  in  con- 
flict herewith,  are  overruled.  And  see  Beals  v.  Amador  County,  35  Cal. 
624.  As  to  uniformity  in  wharfage  and  dockage  duties :  People  v.  Kailroad 
Company,  35  Cal.  606.  A  tax  on  merchants  graduated  according  to  the 
amount  of  their  sales  is  not  unequal :    Sacramento  1).  Crocker,  16  Cal.  119. 

1  Street  Case,  20  La.  An.  497, 1868,  approving  Draining  Company  Case,  11 
La.  An.  338, 1856,  in  which  the  power  of  the  legislature  to  compel  proprie- 
tors to  make  or  pay  for  local  improvements  is  considerately  and  fully  exam- 
ined, and  it  was  even  held  by  the  majority  of  the  court,  that  the  legislature 
had  the  power  to  cause  lands  within  the  limits  of  a  municipal  corporation 
to  be  drained  at  the  expense  of  the  land  benefited,  through  the  interven- 
tion of  a  private  corporation  created  for  that  purpose.  See,  also,  "Wallace 
v.  Shelton,  14  La.  An.  498  (levee  assessments) ;  Municipality  v.  Dunn,  10  La. 
An.  57  ;  O'Leary  v.  Sloo,  7  La.  An.  25 ;  Municipality  v.  Guillotte,  14  ib.  297, 
1859;  Yeatman  v.  Crandall,  11  ib.  220  (levee  assessments) ;  Compare  munici- 
pality v.  White  9  ib.  446,  1864.    Supra,  Sec.  594. 

2  Garrett  v.  St.  Louis,  25  Mo.  505, 1857,  approving  People  v.  Mayor  of 
Brooklyn,  supra;  Lexington  v.  McQuillan's  Heirs,  9  Dana  (Ky.),  513. 


574  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

"assessment"  was  construed  to  be  used  in  its  technical  sense  of 
a  charge  upon  the  adjacent  property  for  improvements,  and 
in  the  former  section  it  was  used  in  a  different  sense.1 

§  603.  A  legislative  enactment  in  Kentucky  incorporated  a 
small  suburban  community,  in  the  vicinity  of  a  city,  called 
"The  District  of  Highlands,"  and  authorized  its  trustees  "to 
grade  and  pave,  or  macadamize  with  rock  or  gravel,  any  pub- 
lic road  passing  through  or  into  said  district,  within  the  limits 
thereof;  and,  with  the  assent  of  two-thirds  of  the  owners  of 
the  real  estate  through  which  any  such  road  may  pass,  to  levy 
special  taxes  on  such  real  estate,  to  pay  for  such  grading  and 
paving  or  macadamizing."  It  was  held  that  the  act  was  con- 
stitutional, and  that  a  levy  of  a  tax,  upon  petition  of  the  requi- 
site number  of  land  owners,  on  the  land  abutting  the  roads 
improved,  rated  by  the  number  of  acres  of  each  owner's  tract, 
approached  equality  as  nearly  as  specific  taxation  might  be 
expected  to  do,  and  hence  could  not  be  adjudged  unconstitu- 
tional for  unjust  inequality.2 

But,  on  the  other  hand,  it  should  be  stated  that,  in  Illinois, 
it  was  held,  under  the  special  provisions  of  the  late  constitu- 
tion, that  special  assessments  made  upon  the  sole  basis  of 
frontage  were  unconstitutional,  as  containing  neither  the  ele- 
ment of  "  uniformity  "  nor  "equality,"  which  were  regarded 
as  essential  to  all  taxation  in  that  state,  whether  general  or 
local.3 

1  Hines  v.  Leavenworth,  3  Kansas,  186,  1865.    Ante,  p.  67,  Sec.  27. 

"  Malchus  v.  Highlands,  4  Bush  (Ky.),  547. 

3  Chicago  v.  Lamed,  34  111.  203,  1864,  criticising  and  holding  inapplicable, 
People  v.  Brooklyn,  supra,  and  the  decisions  in  other  states  which  follow 
it :  S.  P.  Ottawa  v.  Spencer,  36  111.  211,  1866.  In  view  of  the  importance  of 
the  subject,  and  the  undoubted  fact  that  the  reasoning  of  the  court  is  op- 
posed, as  it  would  seem,  to  the  general  current  of  the  decisions  elsewhere, 
the  special  provision  of  the  constitution,  and  the  result  reached,  may  be 
properly  stated  with  some  fulness.  The  constitution  (Art.  9,  Sec.  2)  declared 
that  the  general  assembly  shall  provide  for  levying  a  tax  by  valuation,  so 
that  all  persons  shall  pay  a  tax  in  proportion  to  the  value  of  their  property. 
It  also  contained  the  following  provision  (Art  9,  Sec.  5).  "That  the  corpor- 
ate authorities  of  counties,  townships,  school  districts,  cities,  towns,  and  villages 
maybe  vested  with  power  toassessand  collect  taxes  for  corporate  purposes ;  such 
taxes  to  be  uniform  in  respect  to  persons  and  property  within  the  jurisdiction  of 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  575 

§  604.  In  a  previous  chapter  the  subject  of  municipal  au- 
thority over  streets,  iind  also  over  roads  and  highways  within 
the  corporate  limits  of  municipalities,  has  been  considered.1 
Special  provision  for  road  or  street  labor  is  not  unfrequently 
made  in  charters ;  and  unless  there  be  some  restrictive  consti- 
tutional provision,  the  legislature  may  empower  the  municipal 
authorities  to  require  the  inhabitants  to  pay  road  taxes,  or  per- 
form road  labor,  which  is  in  effect  a  tax.  Not  only  so,  but  the 
legislature  has  the  constitutional  power  to  authorize  a  city  cor- 
poration to  levy  taxes  or  expend  money  to  improve  public 
roads  outside  of,  but  leading  into,  the  city.2  And  the  grant  in 
the  charter  of  a  city  of  the  power  to  require  road  labor  from 
all  male  residents  between  certain  ages  is  not  an  infringement 

the  body  imposing  the  same.''  Also,  the  usual  provision  for  compensation  for 
private  property  taken  for  public  use.  By  trie  revised  charter  of  the  city 
of  Chicago  it  was  empowered  to  grade,  pave,  and  improve  its  streets,  and 
to  assess  the  cost  upon  the  real  estate  fronting  on  the  contemplated  improve- 
ment. In  the  case  of  Chicago  v.  Lamed,  34  111.  203,  1864,  the  question  of 
the  constitutionality  of  this  part  of  the  charter  arose,  and  was  discussed  by 
counsel  with  great  analytic  power  and  research.  The  opinion  of  the  Su- 
preme Court  was,  that  the  provisions  of  the  constitution  were  peculiar  and 
more  stringent  than  those  in  any  other  state  (but  in  this  respect,  the  court 
was  probably  mistaken) ;  that  the  principles  of  "uniformity  "  and  "  equality  " 
of  taxation  applied  to  local  as  well  as  general  taxes  —  applied  to  special  as- 
sessments as  well  as  to  taxes  —  and  that  a  special  assessment  for  a  "Nichol- 
son pavement,"  made  on  the  basis  of  the  frontage  of  lots  op  the  streets,  was 
invalid,  as  being  neither  equal  nor  uniform.  The  court  was  of  opinion 
that  such  assessments  could  only  be  made  by  assessing  to  each  lot  the 
special  benefits  it  will  derive  from  the  improvement,  charging  such  benefit 
on  the  lots,  the  residue  of  the  cost  to  be  paid  by  equal  and  uniform  taxa- 
tion. The  prior  decisions  in  that  state  upon  the  subject  are  reviewed,  and 
in  effect,  as  it  would  seem  to  the  author,  overruled.  In  Ottawa  v.  Speneer, 
40  111.  211, 1866,  the  same  principle  was  adhered  to  and  applied  to  a  special 
assessment  for  building  sidewalks  :  S.  P.  St.  John  v.  East  St.  Louis,  50  111. 
92,  1869.  As  to  provisions  of  the  new  constitution  of  Illinois,  and  construc- 
tion of  Sec.  4,  Art.  IX.  thereof,  in  relation  to  municipal  taxes  and  assess- 
ments, see  Webster  v.  Chicago,  1872,  4  Chicago  Legal  l^ews,  116,  not  yet 
officially  reported  :  Prim  v.  Belleville,  ib.  227. 

1  Ante,  Chap.  XVIII.  Sees.  534-537. 

2  Skinner  v.  Hutton,  33  Mo.  244, 1862.  The  legislature  of  the  state  has 
the  power,  unless  expressly  restrained  by  the  constitution,  to  authorize  a 
municipal  corporation  to  levy  a  tax  upon,  or  require  a  license  from,  per- 
sons using  the  paved  streets  of  a  city,  for  the  purpose  of  keeping  the-  same 
in  repair  :  Chess  v.  Birmingham,  1  Grant  (Pa.)  Cas.  438,,  1857..  See  Bennett 
v.  Birmingham,  31  Pa.  St.  15, 1850.    Ante,  Sec,  540. 


576  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

of  the  provision  of  the  state  constitution,  which  requires  "that 
the  mode  of  levying  a  tax  shall  be  by  valuation,  so  that  every 
person  shall  pay  a  tax  in  proportion  to  the  value  of  his  prop- 
erty," the  court  being  of  the  opinion  that  this  clause  was  in- 
tended to  direct  a  uniform  mode  of  taxing  property,  but  not  to 
deprive  the  legislature  of  the  power  to  resort  to  other  species 
of  taxation  if  it  saw  fit  to  do  so.1  Power  to  the  corporate  au- 
thorities of  a  town  "to  make  such  rules,  orders,  regulations, 
and  ordinances  as  to  them  shall  seem  meet  for  repairing 
streets,"  was  held,  in  view  of  the  general  legislation  on  the 
same  subject,  to  give  authority  to  require  the  inhabitants  com- 
pulsorily  to  labor  on  the  streets  for  the  purpose  of  repairing 
them,  and  this,  although  there  was  also  express  power  (re- 
garded by  the  court  as  cumulative),  to  levy  a  tax  to  be 
expended,  among  other  purposes,  for  street  repairs.2 

§  605.  It  is  a  principle  universally  declared  and  admitted, 
that  municipal  corporations  can  levy  no  taxes,  general  or 
special,  upon  the  inhabitants  or  their  property,  unless  the 
power  be  plainly  and  unmistakably  conferred.  It  has,  indeed, 
often  been  said  that  it  must  be  specifically  granted  in  terms ; 
but  all  courts  agree  that  the  authority  must  be  given  either  in 
express  words,  or  by  necessary  implication,  and  that  it  cannot 
be  collected  by  doubtful  influences  from  other  powers,  or  pow- 
ers relating  to  other  subjects,  nor  deduced  from  any  considera- 
tion of  convenience  or  advantage.  It  is  important  to  bear  in 
mind  that  the  authority  to  municipalities  to  impose  burdens  of 
any  character  upon  persons  or  property  is  wholly  statutory, 
and  as  its  exercise  may  result  in  a  divestiture  and  transfer  of 
property,  it  must  be  clearly  given  and  strictly  pursued.  This 
rule  applies,  as  we  have  already  seen,  to  proceedings3  by  mu- 
nicipal corporations  under  the  delegated  right  of  Eminent 
Domain,  and  it  extends  equally  to  proceedings  under  the  tax- 
ing power,  including  special  assessments  for  local  improve- 
ments.4 

1  Sawyer  v.  Alton,  3  Scam.  (111.)  130. 

2  State  v  Halifax,  4  Dev.  Law  (N.  C),  345, 1833. 

3  Ante,  Chap.  XVI.  Sec.  470,  et  seq. 

*  Sharp  v.  Spier,  4  Hill  (N.  Y.),  76, 1843  ;    Sharp  v.  Johnson,  ib.  92  j  Mays 
y.  Cincinnati,  1  Ohio  St.  268, 1853  j    Beatty  v.  Knowles,  4  Pet,  (TJ.  S.)  152 ; 


CH.  XIX.J      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  577 

§  606.  Therefore,  the  power  to  tax  (using  the  word  in  its 
strict  and  proper  sense,  as  a  means  of  raising  municipal  reve- 
nue) cannot  be  inferred  from  the  general  welfare  clause  in  a'  char- 
ter ; '  nor  is  it  usually  to  be  implied  from  authority  to  license 
and  regulate  specified  avocations;2    nor  from  legislative  au- 

Dyckman  v.  Mayor,  &c.  of  New  York,  1  Seld.  434  ;  Leavenworth  v.  Norton, 
1  Kansas,  432,  1863 ;  Barnes  v.  Achison  2  ib.  454 ;  Henry  v.  Chester,  15  Vt. 
460,  1843,  nature  of  authority  discussed  by  Redfleld,  J.  Asheville  v.  Means, 
7  Ire.  Law,  406,  1847 ;  Jonas  v.  Cincinnati,  18  Ohio,  318,  1849 ;  Navigation 
Company  v.  Portland,  2  Ore.  81 ;  Trustees  v.  Osborne,  9  Ind.  458,  1857  ; 
Howell  v.  Buffalo,  15  N.  Y.  512  ;  Burnett  v.  Buffalo,  17  N.  Y.  383 ;  Maurice 
v.  Mayor  of  New  Yoik,  8  N.  Y.  120;  Fairfield  v.  Ratcliff,  20  Iowa,  396,  1866; 
Henderson  v.  Baltimore,  8  Md.  352, 1855 ;  Rathbun  v.  Acker,  18  Barb.  393  ; 
State  v.  Jersey  City,  2  Dutch.  (N.  J.)  444;  1  ib.  309  ;  Columbia  v.  Hunt,  5 
Rich.  (S.  C.)  Law,  550 ;  Chicago  v.  Wright,  32  111.  192 ;  Taylor  v.  Douner,  31 
Cal.  480;  Emery  v.  Gas  Company,  28  Cal.  345;  St.  Louis  v.  McLaughlin, 
Missouri  Supreme  Court,  1872 ;  Dwarris  on  Statutes,  749. 

"  The  burden  is  upon  the  corporation  to  show  the  grant  [to  lay  taxes]  by 
express  words,  or  necessary  implication.  For  otherwise  it  cannot  be  justi- 
fied in  the  exercise  of  this  high  prerogative  of  sovereignty."  Per  Lumpkin, 
J.,  in  Savannah  v.  Hartridge,  8  Ga.  23-26,  1850.  Statutes  authorizing  the 
levying  of  taxes  are  strictly  construed,  and  if  there  is  just  doubt,  that  doubt 
exempts  the  citizen. from  the  burden:  Ib.  Lot  v.  Ross,  38  Ala.  156,  161, 
1861.  "  The  law  [authorizing  local  assessments]  must  be  strictly  followed 
as  to  all  its  substantial  requirements."  Per  Lawrence,  J.,  Scammon  v.  Chi- 
cago, 40  111.  146.  "Possessing,  as  these  municipal  corporations  do,  the 
power  of  assessment  and  sale  of  private  property,  often  wielded  by  the  inr 
discreet  and  selfish,  the  grossest  abuses  Would  inevitably  follow,  if  they 
were  not  held  strictly  within  the  powers  granted  and  the  means  prescribed 
for  the  execution  of  these  powers."  Per  Stuart,  J.,  Kyle  v.  Malin  (relating 
to  power  to  tax  for  local  improvement),  8  Ind.  34-37, 1856.  "  It  is  undoubt- 
edly true,  as  held  by  this  court  in  the  City  of  Richmond  v.  Daniel,  14  Gratt. 
387,  that  laws  conferring  the  power  of  taxation  upon  a  municipal  corpora- 
tion are  to  be  construed  strictly  ;  and  so,  too,  are  exemptions  from  taxation 
to  be  construed  strictly,  and  when  the  power  of  taxation  has  been  once 
conferred,  it  is  not  to  be  crippled  or  destroyed  by  strained  interpretation  of 
subsequent  laws."  Per  Joynes,  J.,  Railroad  Company  v.  Alexandria,  17 
Gratt  (Va.),  176,  1867.  Tax  levied  by  de  facto  aldermen  valid:  Dean  v. 
Gleason,  16  Wis.  1-17, 1862.    Ante,  Chap.  IX.  Sec.  214. 

1  Ante,  Sees.  291-299;  Mays«.  Cincinnati,  1  Ohio  St.  268, 1853.  If  the  ob- 
jects or  subjects  of  taxation  are  expressly  designated,  the  right  to  tax  for 
other  objects  or  subjects  cannot  be  derived  from  the  general  power,  though 
expressly  conferred,  to  enact  by-laws  for  the  good  government  of  the  town  : 
Asheville  v.  Means,  7.  Ire.  Law,  406, 1847. 

2  Ante,  chapter  on  Ordinances,  Sees.  219^299,  331.  And  see  Mays  v.  Cin- 
cinnati, supra;    Cincinnati  v.  Bryson,  15  Ohio,  625, 1846,  approving  Boston 

73 


578  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

thority  permitting  certain  improvements  to  be  made,  or  liabili- 
ties to  be  created,  unless  such  appears  on  the  whole  to  have 
been  the  clear  legislative  intent.1 

§  607.  So,  conformably  to  the  principles  adopted  for  the  con- 
struction of  this  class  of  powers,  it  is  held  that  where  a  statute 
specifies  certain  purposes  for  which  taxes  may  be  levied  by  the 
municipal  authorities,  and  adds  "  or  for  any  other  purpose  they 
may  deem  necessary,"  these  general  words  will  authorize  taxa- 
tion only  for  purposes  of  the  same  general  character  with  those 
already  enumerated.2  So,  power  "to  levy  and  collect  a  special 
tax"  for  lighting  a  city  does  not  authorize  the  council  to  add 
to  the  tax  a  per  centage  for  collector's  fees  nor  the  cost  of  pro- 
ceedings before  the  mayor ;  these  services  must  be  paid  for 
from  the  general  revenue,  unless  otherwise  specifically  provided 
for  by  the  charter.3  So,  power  to  make  such  by-laws  as  shall 
be  necessary  "to  promote  the  peace,  good  order,  benefit,  and 
advantage"  of  the  corporation,  and  to  assess  such  taxes  as 
shall  be  necessary  for  carrying  the  same  into  effect,  does  not 
authorize  a  tax  for  the  payment  of  part  of  the  expense  to  be 
incurred  by  a  railroad  company,  in  bringing  the  line  of  their 
road  nearer  to  the  town  than  originally  located." 

v.  Schaffer,  9  Pick.  419.  Compare  Cincinnati  v.  Buckingham,  10  Ohio,  261, 
and  1  Ohio  St.  268-274,  as  to  correctness  of  which  qusere:  Mayor  v.  Yuile,  3 
Ala.  (N.  S.)  1841 ;  Collins  v.  Louisville,  3  B.  Mon.  (Ky .)  133 ;  State  v.  Rob- 
erts, 11  Gill  &  Johns.  (Md.)  506,  per  Aroher,  J. ;  Mayor  v.  Beasley,  1  Humph. 
(Tenn.)  240.    Infra,  Sec.  609. 

1  Leavenworth  v.  Norton,  1  Kansas,  432,  1863  ;  Burnes  v.  Achison,  2  ib. 
454.  Ante,  p.  149,  Sec.  .107,  and  cases  cited.  The  power  to  rnake  an  im- 
provement does  not  imply,  or  carry  with  it,  the  power  to  levy  a  special  as- 
sessment upon  property  benefited  to  pay  for  the  improvement.  Such 
assessments  can  only  be  made  where  the  power  to  do  so  is  plainly  conferred 
and  strictly  followed :  Wright  v.  Chicago  (assessments  for  deepening  river), 
20  111.  252,  1858  ;  Columbia  v.  Hunt  (curbing  assessment),  5  Rich.  (South 
Car.)  550 ;  Chicago  v.  Wright,  32  111.  192.  Power  !'to  regulate  and  improve 
sidewalks  "  does  not  authorize  special  assessments  upon  adjoining  owner ; 
■but  such  improvements  may  be  paid  for  out  of  the  corporation  treasury : 
Fairfield  v.  Ratcliff,  20  Iowa,  396.  . 

2  Drake  v.  Phillips,  40  111.  388,  1866. 

3  Jonas  v.  Cincinnati,  18  Ohio,  318-323, 1849;  Nelson  v.  La  Porte,  33  Ind. 
258.  Same  principle  as  to  local  assessments  i  Buckwall  v.  Story,  36  Cal.  67; 
Williams  v.  Detroit,  2  Mich.  560.    Ante,  p.  452,  n, 

4  McDermond  y.  Kennedy,  Bright.  (Pa.)  332,  Ante,  Chap.  VI.  Sees.  106- 
108, 


OH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  579 

§  608.  The  power  to  levy  taxes  and.make  heal  assessments  con- 
ferred upon  municipal  corporations  may,  in  the  absence  of 
constitutional  restriction,  and  when  the  rights  of  creditors  are 
not  impaired,  as  we  have  heretofore  shown,  be  changed  at  the 
pleasure  of  the  legislature,1  or  resumed  and  be  exercised  by  com- 
missioners directly  appointed  by  the  legislature.2 

§  609.  The  taxing  power  is  to  be  distinguished  from  the 
police  power,  the  general  nature  of  which  has  been  before  ad- 
verted to.3  The  power  to  license  and  regulate  particular: 
branches  of  business  or  matters  is  usually  a  police  power ;  but 
when  license  fees  or  exactions  are  plainly  imposed  for  the  sole 
or  main  purpose' of  revenue,  they  are,  in  effect,  taxes.4  The 
authority  to  license  and  regulate  various  matters  is  very  gen- 
erally conferred  upon  the  municipal  councils,  and  there  is,  as 
we  have  seen  in  a  former  chapter,  some  difference  pf  judicial 
opinion  as  to  the  extent  of  power  thus  conferred,  particularly 
in  reference  to  using  it  for  purposes  of  revenue.6  Ordinarily, 
the  mere  power  to  license,  or  to  subject  to  police  regulations, 
does  not  give  the  power  to  tax  distinctly  for  revenue  purposes ; 
but  it  may  give  the  power  when  such  appears  from  the  nature 
of  the  subject  matter,  and  upon  the  whole  charter  or  enact- 
ment to  have  been  the  legislative  intent,  but  not  otherwise.6 

1  Ante,  Chap.  IV.  p.  75,  note ;  p.  78,  Sec.  34 ;  p.  79,  Sec.  35 ;  p.  80,  Sec.  36 ; 
p.  82,  Sec.  39;  p.  86,  Sec.  41 ;  p.  90,  Sec.  44.  Ante,  Chap.  XIV.. Blanding  v. 
Burr,  13  Cal.  343;  Aspinwall  v.  County  of  Jo  Daviess,  22  How.  364;  Gilman. 
v.  Sheboygan,  2  Black  (U.  S.),  510 ;  Lansing  v.  County  Treasurer,  1  Dillon, 
C.  C.  522;  Muscatine  v.  Railroad  Company,  ib.  536;  Van  Hoffman  v.  Quincy, 
4  Wall.  535 ;  Butz  v.  Muscatine,  8  Wall.  575.    Ante,  p.  558,  n., 

2  Baltimore  v.  Board  of  Police,  15  Md.  376, 1859.  See  on  this  subject, 
Chap.  IV.  ante :  Philadelphia  v.  Field,  58  Pa.  St.  320, 1868.    Ante,  Sec.  43. 

3  Ante,  Chap.  VI.  p.  135,  Sec.  93.  The  distinction  between  the  two  pow- 
ers is  well  stated  by  Depue,  J. :  State  w.Hoboken,  cited  infra.  Supra,  Sec. 
607. 

4  Ante,  Chap.  XII.  Sees.  291-299;  Ward  v.  Maryland,  12  Wall.  418, 1870, 
per  Clifford,  J. 

5  Ante,  Chap.  XII.  Sees.  291-299,  and  cases  there  cited 

6  Ib.  See,  also,  ante,  p.  125,  Sec.  79;  Freeholders  v.  Barber,  2  Halst.  (N. 
J.)  64.  Power  to  license  inns  gives  no  power  to  tax :  Ib.  Same  principle : 
Kip  v.  Patterson,  2  Dutch.  (N.J.)  298;  New  York  f.  Avenue  Railroad 
Company,  32  N.  Y.  261.  Ante,  Chap.  XII.  p.  302.  Thus,  agreeably  to  the 
rule  stated  in  the  text,  it  was  held  in  the'  State  v.  Hoboken,  33  N.  J.  Law, 


580  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

§  610.  As  the  authority  to  levy  taxes  or  to  make  local  as- 
sessments does  not,  as  we  have  just  seen,  exist  unless  unequiv- 
ocally conferred,  so  it  can  be  exercised  no  further  than  it  is 
clearly  given;  and  if  the  mode  in  which  the  authority  shall  be 
exercised  is  prescribed,  that  mode  must  be  pursued.1  There  is, 
however,  some  difficulty  at  times  to  distinguish  provisions 
which  are  imperative  from  those  which  are  directory  merely.2 

280,  1869,  that  the  power  given  to  a  municipal  corporation  to  regulate  streets 
and  the  building  of  vaults  will  not  authorize  an  exaction  or  assessment 
which  amounts  to  a  tax  upon  the  owners  of  lots  for  permission  to  builp 
vaults  in  the  streets  in  front  of  their  property,  or  to  improve  the  streets  for 
their  more  convenient  use. 

Power  to  license  vending  of  intoxicating  liquors  within  a  short  distance  of 
the  municipality  valid  as  a  police  regulation :  Falmouth  v.  Watson,  5  Bush, 
(Ky.)  660,  1869 ;  Mason  v.  Lancaster,  4  ib.  406,  where,  by  its  charter,  a  city 
is  authorized  to  assess  a  tax  on  licenses  to  do  certain  kinds  of  business,  it 
may  require  the  payment  of  the  tax  as  a  condition  precedent  to  issuing  tl.e 
license :    Sights  v.  Yarnalls,  12  Gratt.  (Va.)  292, 1855. 

1  Ante,  pp.  101-104,  Sec.  55,  and  note ;  D'Antignac  v.  Augusta,  31  Ga.  700 ; 
Lott  v.  Ross,  38  Ala.  156,  1861 ;  Fitch  v.  Pinckard,  4  Scam.  (111.)  78 ;  Hender- 
son v.  Baltimore,  8  Md.  352, 1855 ;  Rathbun  v.  Acker,  18  Barb.  393 ;  Chicago 
v.  Wright,  32  111.  192 ;  Crane  v.  Janesville,  20  Wis.  305 ;  Knox  v.  Peterson, 
21  Wis.  247 ;  Collins  v.  Louisville,  2  B.  Mon.  134 ;  Cross  v.  Morristown 
(mode),  18  N.  J.  Eq.  305,  1867;  Bouldin  v.  Baltimore,  15  Md.  18,  1859; 
Dwarris  on  Statutes,  749. 

All  the  steps  required  by  law  to  confer  jurisdiction  to  order  improvement 
must  be  complied  with :  Himmelman  v.  Danos,  35  Cal.  441  ;  Dougherty  v. 
Hitchcock,  ib.  512 ;  Nicholson  Paving  Company  v.  Painter,  ib.  699;  Himmel- 
man v.  Oliver,  34  ib.  246;  Lexington  v.  Headley,  5  Bush  (Ky.),508;  Welker 
v.  Potter,  ,18  Ohio  St.  85.  Where  mode  of  making  improvements  is  pre- 
cribed  by  statute,  "the  mode  in  such  cases  constitutes  the  measure  of  power :" 
Held,  C.  J.,  in  Zottman's  Case,  20  Cal.  102;  approved  by  Sanderson,  J.,  in 
Nicholson  Paving  Company  v.  Painter,  35  Cal.  699.  Where  the  organic  law 
of  a  city  is  silent  as  to  the  manner  in  which  it  shall  express  its  determina- 
tion to  improve  a  street,  this  may  be  done  by  motion  or  resolution  as  well 
as  by  ordinance :    Indianapolis  v.  Imberry,  17  Ind.  175, 1865.    Ante,  p.  271. 

z  A  statute  requiring  a  tax  to  be  levied  on  a  day  named  held  directory,  and 
•  the  duty  may  be  performed  within  a  reasonable  time  thereafter :  Gearhart 
v.  Dixon,  1  Pa.  St.  224,  1845.  But  in  Williamsport  v.  Kent,  14  Ind.  306, 1860, 
an  incorporating  statute  provided  that  "the  board  of  trustees  shall,-  before 
the  third  Tuesday  in  May,  each  year,  determine  the  amount  of  general  tax 
for  the  current  year,"  and  although  it  was  not  expressly  declared  by  the 
statute  that  they  should  not  exercise  the  power  after  the  time  named,  it 
was  nevertheless  decided  that  a  tax  levied  after  the  third  Tuesday  in  May 
was  void.    Sed  qusere.    Post,  Chap.  XX. 


CH.  XIX.J      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  581 

It  is  not  unusual,  in  the  organic  acts  of  municipalities,  for  the 
protection  of  the  citizens,  to  limit  the  rate  of  taxation,  or  the 
amount  of  taxes  that  may  he  raised  during  any  one  year ;  and 
where  the  power  is  thus  limited,  it  is  not  ordinarily  enlarged 
hy  implication,  by  other  provisions  of  the  charter,  general  in 
their  nature,  conferring  the  power  to  make  contracts,  or  to  in- 
cur liabilities,  or  even  giving  authority  to  make  improvements, 
or  to  erect  usual  or  ordinary  buildings.1  But  special  authority 
to  borrow  money  for  a  designated  purpose  may,  and  if  such 
be  the  legislative  intention  will,  impliedly  repeal,  pro  tanto, 
existing  charter  limitations  upon  the  rate  ot  taxation.2  Where 
the  charter  limit  as  to  the  amount  of  taxes  or  rate  of  taxation 
for  any  given  year  is  not  exceeded,  there  may  be  different  levies 
of  taxes  in  the  same  year,  which,  where  the  charter  is  silent  on 
the  point,  may  be  either  a  fiscal  year  or  calendar  year,  in  the 
discretion  of  the  council.3 

§  611.  The  general  statutes  of  every  state  contain  elaborate 
revenue  lews,  declaring  what  property  is  taxable  and  in  what 
manner  it  shall  be  taxed;  but  municipalities,  as  we  have  seer., 
must  have  a  specific  and  clear  grant  of  power  to  authorize  them 
to  levy  and  collect  taxes,  and  the  manner  in  which  it  is  con- 
ferred often  leaves  it  to  be  determined  by  judicial  construction 
how  far  the  provisions  of  the  general  law  apply  to  municipal  corpora- 

1  Benoist  v.  St.  Louis,  19  Mo.  179,  1853 ;  Clark  v.  Davenport,  14  Iowa,  494 ; 
Lamed  v.  Burlington,  2  Am.  Law  Reg.  (N.  S.)  394,  and  note;  Leavenworth 
v.  Norton,  1  Kansas,  432 ;  Burnes  v.  Achison,  2  Kansas,  454.  But  see  Com- 
monwealth v.  Pittsburg,  34  Pa.  St.  496 ;  Amey  v.  Allegheny  City,  2  How.  (U. , 
S.)  364 ;  Eosdick  v.  Perrysburg„14  Ohio  St.  472  ;  Butz  v.  Muscatine,  8  Wall. 
575,  1869.    Ante,  p.  149,  Sec.  107. 

2  Ante,  p.  149,  Sec.  107,  and  cases  there  cited.  In  the  Commonwealth  v. 
Pittsburg,  above  cited,  a  city,  by  a  special  act  of  the  legislature,  was  author- 
ized to  create  a  large  debt  for  a  particular  purpose,  and  to  borrow  money 
therefor,  and  to  make  provision  for  the  payment  thereof  by  the  assessment 
and  collection  of  such  tax  as  might  be  necessary  therefor ;  this  was  held, 
as  respects  the  particular  debt  thus  created,  to  be  a  repeal  of  any  pre-exist- 
ing restrictions  upon  the  power  of  taxation. 

s  Benoist  v.  St.  Louis,  19  Mo.  179, 1853.  But,  in  the  aggregate,  the  charter 
limit  must  not  be  exceeded:  lb.  Where  there  is  no  restriction  in  the 
charter  as  to  the  time  or  amount  of  levy,  the  city  council,  on  ascertaining 
that  the  first  levy  will  prove  insufficient,  may  levy  an  additional  tax  during 
the  same  year:    Municipality  v.  Cotton  Press  Company,  6  Rob.  (La.)  411. 


582  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

tions.  The  ordinary  principles  of  construction,  where  there  is 
a  conflict  between  the  general  and  special  legislation,  have 
been  referred  to  in  a  previous  chapter.1  In  some  instances, 
municipal  charters  have  been  held  to  authorize  the  corpora- 
tions to  tax  in  a  different  mode,  or  upon  different  principles, 
from  that  adopted  by  the  legislature  in  respect  to  state  taxa- 
tion.2 

§  612.  In  Virginia,  the  general  laws  imposing  taxes  for  the 
support  of  the  state  government  required  railroad  companies 
to  pay  into  the  state  treasury,  for  every  passenger  transported, 
one  mill  for  every  mile  of  transportation,  and  then  provided 
that  "every  company  paying  such  shall  not  be  assessed  with 
any  tax  on  its  lands,  buildings,  or  equipments."  The  charter 
of  a  city  in  that  state  gave  it  power  to  "raise  money  by  taxes- 
for  the  use  of  the  city,  provided  the  laws  for  that  purpose  be 
■not  repugnant  to  the  laws  of  the  state."  It  was  held  that  the 
general  tax  law  was  intended  to  refer  only  to  state  taxation^  and 
did  not  extend  to  municipalities;  that  the  proviso  in  the  city 
charter  does  not  limit  the  power  of  the  city  to  tax  only  such 
property  or  subjects  as  are  taxed  by  the  state;  and  that,  under 
the  above-mentioned  power  in  its  charter,  the  city  could  tax 
the  real  estate  and  personal  property  of  the  company  perma- 
nently located  therein,  and  the  opinion  was  expressed  that,  as 
the  residence  or  domicil  of  the  company  was  in  that  city,  it 
could  also  tax  the  rolling  stock  employed  on  the  road  of  the 
company.3 

§  613.  But  authority  conferred  by  the  charter  of  a  village 
corporation  to  assess  taxes  "  upon  the  freeholders  and  inhabi- 
tants of  said  village  according  to  law,"  means  according  to  the 

1  Ante,  Chap.  V.  p.  100,  Sec.  54,  and  cases  cited;  State  v.  Branin,  3  Zabr. 

(N.  J.)  484, 1852. 

2  Adams  v.  Mayor,  2  Head  (Term.),  363;  Mayor  v.  Bailey,  1  Humph. 
(Tenn.)  232,  240;  Shoalwater  v.  Armstrong,  9  ib.  217;  Gless  v.  White,  5 
Sneed  (Tenn.),  475.  Instances  of  general  law  not  applying  to  cities:  Langdon 
v.  Fire  Department,  17  Wend.  234;  Furman  v.  Knapp,  19  Johns.  248;  Mu- 
nicipality v.  Railroad  Company,  10  Bob.  (La.)  187;  Municipality  v.  Bank,  5 
ib.  151.    See  Sanders  v.  McLin,  1  Ire.  (Law)  572. 

'  Eailroad  Company  v.  Alexandria,  17  Gratt.  (Va.)  176.    Ante,  Sec.  54. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  583 

provisions  and  principles  of  the  general  tax  law  in  force  at  the 
time  the  assessment  is  made.1  So  authority  in  the  charter  of 
a  city  to  "  assess  all  taxable  real  and  personal  property  within 
the  city,"  refers  to  the  general  state  law  to  ascertain  what  kind 
of  property  is  subject  to  taxation,  and  the  corporation  has 
power  to  assess  not  only  what  was  then  taxable,  but  also  what- 
ever might  afterwards  be  made  subject  to  taxation  by  any  gen- 
eral statute.2 

1  Ontario  Bank  v.  Bunnell,  10  Wend.  186,  1833;  approved,  Buffalo  v.  Le 
Couteulx,  15  N.  Y.  451,  455,  1857;  American,  &e.  Company  v.  Buffalo,  20 
N.  Y.  381,  391,  per  Denio,  J.;  State  Bank  v.  Madison,  3  Ind.  43,  1851;  Gard- 
ner v.  State,  1  Zabr.  (N.  J.)  557.    Ante,  Sec.  54. 

"  There  are  numerous  bodies  in  this  state,  like  the  village  in  question, 
which  possess  to  a  limited  extent  the  power  of  local  taxation,  and,  I  pre- 
sume, in  every  instance  the  principles  and  mode  of  imposing  a  tax  are 
ascertained  by  reference  to  the  general  law;  and  we  should  lament  to  be 
obliged  to  give  to  their  several  powers  such  a  construction  as  would  pre- 
vent a  participation  in  the  improvements  of  the  system  of  taxation  which 
are  made  from  time  to  time,  and  to  be  found  only  in  the  general  law  on 
the  subject:"  Per  Nelson,  J.,  in  the  Ontario  Bank  v.  Bunnell,  10  Wend.  186, 
1833.    Ante,  Sec.  54. 

How  far  the  general  laws  of  the  state  in  regard  to  taxation  apply  to  villages, 
towns,  and  cities,  see  Mayor,  &c.  of  Troy  v.  Mutual  Bank,  20  N.  Y.  387 ;  Amer- 
ican, &c.  Company  v.  Buffalo,  ib.  388,  note.  In  this  last  case,  p.  391,  Denio,  C. 
J.,  lays  down  this  proposition :  "  Where  the  general  law  is  made  applicable 
[to  municipalities]  in  this  way  [that  is,  by  words  of  reference  to  the  general 
laws  contained  in  their  charters],  any  change  in  the  general  law  would 
produce  a  corresponding  change  in  the  method  of  taxation  by  municipal 
corporations,  the  reference  being  to  the  law  as  it  shall  exist  for  the  time 
being."  Same  principle:  Ontario  Bank  v.  Bunnell,  10  Wend.  186,  1833; 
Buffalo  v.  -Le  Couteulx,  15  N.  Y.  451 ;  Davenport  v.  Railroad  Company,  16 
Iowa,  348.  The  view  of  Wright  and  Dillon,  JJ.,in  the  case  last  cited,  was  sub- 
sequently adopted  by  the  Supreme  Court  in  a  case  not  yet  reported  (1871) ; 
State  v.  Town  Council,  8  Bich.  (South  Car.)  214.  Where  a  city  is  author- 
ized "  to  levy  a  tax  upon  the  tax-payers  of  the  city,  taxable  under  the 
revenue  laws  of  the  state,"  such  tax  must  be  levied  upon  the  same  persons 
and  property  as  prescribed  by  the  revenue  laws  of  the  state.  The  phrase 
"tax-payers  of  the  city,  taxable  under  the  revenue  laws  of  the  state,"  desig- 
nates both  the  person  and  subject  of  taxation :  Banett  v.  Henderson,  4  Bush 
(Ky.),  255. 

8  Buffalo  v.  Le  Couteulx,  15  N.  Y.  451,  1857;  10  Wend.  186,  supra; 
Davenport  v.  Bailroad  Company,  supra;  Lot  v.  Ross,  38  Ala.  156,  construing 
the  words  "  taxable  property."  But,  in  South  Carolina,  in  cases  arising  under 
the  charter  of  the  city  of  Charleston,  which  is  authorized  "  to  assess  those 
who  "hold  taxable  property  within  the  same,"  the  words  "taxable  property" 
were  construed  "to  mean  all  property  not  exempt  by  law  from  taxation,"  whether 


584  MUNICIPAL   COEPOEATIONS.  [CH.  XIX. 

§  614.  The  general  statutes  of  the  state  upon  the  subject  of 
taxing  property  undoubtedly  refer  to  private  -property,  and  not  to 
that  owned  by  the  state;  and,  in  view  of  the  public  nature  of 
municipalities,  and  the  purposes  for  which  they  are  established, 
heretofore  explained,1  the  author  is  of  opinion  that  such  enact- 
ments do  not,  by  implication,  extend  to  any  property  owned  by 
them — certainly  to  none  owned  by  them  for  public  uses.2  On 
this  ground  it  was  held  that  a  sale  of  lands,  the  property  of  a 
city  corporation,  and  constituting  part  of  the  city  cemetery,  for 
taxes,  was  void.3 

§  615.  The  view  just  expressed  has  not,  however,  received, 
in  its  full  extent,  the  sanction  of  the  Court  of  Appeals  in  Ken- 
tucky. Tinder  the  statute  laws  of  that  state,  there  was  no 
express  exemption  of  municipal  property  from  taxation,  and  the 
state,  for  state  revenue,  assessed  against  the  city  of  Louisville 
a  large  amount  of  property,  including  the  city  hall,  market 
houses,  fire  engines,  wharves,  &c,  and  the  case  presented  the 
question  whether  the  property  was  or  was  not  exempt,  by  im- 
plication, from  taxation  by  the  state.  And  the  judgment  of 
the  court  was,  that  whatever  property  was  used  and  held  by 
the  city  for  carrying  on  its  municipal  government,  or  was  nec- 
essary or  useful  for  that  purpose,  was  not  taxable  by  the  state, 
and  this  would  include  public  buildings,  prisons,  and  property 
dedicated  to  charity ;  but  that  whatever  is  not  so  used,  but  is 
owned  by  the  city  in  its  "  social  or  commercial  capacity,"  and 
for  its  own  profit,  such  as  vacant  lots,  market  houses,  fire  en- 
gines, and  the  like^is  subject  to  taxation.4 

the  state  taxes  the  particular  kind  of  property  or  not  for  state  purposes. 
The  words  are  not  equivalent  to  the  phrase,  "property  taxed  by  the  state;" 
but  gu&re:  State  v,  City  Council,  10  Rich.  (South  Car.)  Law,  240, 1857;  City 
Council  v.  St.  Phillip's  Church,  1  McMul.  (South  Car.)  Eq.  139;  State  v.  City 
Council,  4  Strobh.  (Law)  217;  State  v.  City  Council,  1  Mill.  Ch.  40;  State  v. 
City  Council,  5  Rich.  (Law)  561;  City  Council  v.  Condy,  4  ib.  254;  City 
Council  i>.  State,  2  Speers  (South  Car.),  Law,  719;  ib.  623. 

1  Ante,  Chap.  I.  p.  17,  et  seq.;  Chap.  II.  p.  28,  et  seq.;  Chap.  IV.  p.  72,  et  seq. 

2  Ante,  Chap.  XV.,  as  to  Corporate  Property,  Sees,  445,  446. 

3  People  v.  Doe,  36  Cal.  220,  1868!    Ante,  p.  560,  n. 

*  Louisville  v  Commonwealth,  1  Duvall  (Ky.),  295,  1864.  The  author, 
With  deference  to.  the  learned  court,  ventures  to  observe  that,  in  his  judg- 
ment, the  exemption  should  have  been  extended  to  all  the  property. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  585 

§  616.  As  the  burden  of  taxation  ought  to  fall  equally  upon 
all,  statutes  exempting  persons  or  property  are  construed  with  strict- 
ness, and  the  exemption  should  be  denied  unless  so  clearly 
granted  as  to  be  free  from  any  fair  doubt.1  Thus,  although  an 
"  assessment"  is  in  the  nature  of  a  tax  and  is  authorized  by,  or 
is  a  branch  of,  the  taxing  power,  yet  a  general  statute  exempt- 
ing certain  property — as,  for  example,  churches — from  "tax- 
ation by  any  law  of  the  state,"  does  not  exempt  it  from  liability 

Municipal  corporations  are  not  usually  allowed  to  hold  or  deal  in  property 
directly  for  profit;  and  this  is  not  the  purpose  for  which  authority  is  given 
to  erect  maiket  houses  or  wharves,  or  to  purchase  and  own  fire  engines. 
Of  course  the  state  might  provide  for  the  taxation  of  property  owned  by  its 
municipalities,  but  its  revenue  laws  should  not  be  construed  to  extend  to 
such  property  unless  the  legislative  intention  to  that  effect  be  manifest  : 
See  People  v.  McCreery,  34  Cal.  43 ;  Mayor  o.  Bank  of  Tennessee,  1  Swan 
(Tenn.),  269. 

1  Orr  v.  Baker  ("church  property"),  4  Ind.  86, 1853;  Gordon  ».  Baltimore, 
5  (fill  (Md.),  231,  1847,  and  cases  cited;  State  v.  Town  Council  ("agricul- 
cultural  property "),  12  Rich.  (South  Car.)  Law,  339;  Municipality®.  Bail- 
road  Company  (inter-corporate  real  estate),  10  Bob.  (La.)  187;  Municipality 
v.  Bank;  5  ib.  151 ;  Trustees  v.  McConnell  (constitutional  limitation),  12  111. 
138;  Bailroad  Company  v.  Alexandria,  17  Gratt.  (Va.)  176,  1867,  per  Joynes, 
J.;  People  v.  McCreery,  34  Cal.  43. 

The  illegal  exemption  of  another  from  a  tax  or  assessment  is  no  ground  for 
an  injunction  against  the  corporation  unless  the  plaintiff  is  injured  thereby, 
as  by  being  compelled  to  pay  more  than  his  proportion:  Page  v.  St.  Louis, 
20  Mo.  136,  1854.  The  ommission  of  an  assessor  to  assess  certain  parcels  of 
property  subject  to  taxation,  whether  arising  from  a  misapprehension  of 
the  law,  as  by  giving  effect  to  void  provisions  of  a  statute,  or  a  mistake  of 
fact,  will  not  invalidate  his  general  assessment  list:  People  i>.  McCreery,  34 
Cal.  43.  An  omission  by  the  assessors  to  assesjs  a  given  individual  because 
he  is  poor,  and  his  property  was  of  little  value,  does  not  invalidate  the 
whole  assessment:  Williams  v.  School  District,  21  Pick.  75, 1838;  "Weeks  v. 
Milwaukee,  10  Wis.  242;  Kneeland  v.  Milwaukee,  15  ib.  454;  Bond  v.  Keno- 
sha, 17  ib.  284 ;  Dean  v.  Gleason,  16  *6.  1,15;  Hersey  v.  Supervisors,  16  ib. 
185. 

The  Wisconsin  cases  assert  the  following  rule  as  to  the  effect  of  the  omis- 
sion to  tax  property  liable  to  taxation :  "  Omissions  of  this  character,  arising 
from  mistak^  of  fact,  erroneous  computations,  or  errors  of  judgment  on  the 
part  of  those  to  whom  the  execution  of  the  taxing  laws  is  entrusted,  do  not 
necessarily  vitiate  the  whole  tax.  But  intentional  disregard  of  those  laws,  in 
such  manner  as  to  impose  illegal  taxation  on  those  who  are  assessed,  does : " 
Per  Paine,  J.,  in  Weeks  v.  Milwaukee,  supra.  The  language  was  used  in  a 
case  in  Which  the  city  council,  in  view  of  the  benefit  which  the  construc- 
tion of  a  new  hotel  would  be  to  the  city,  intentionally  omitted  to  cause  the 

74 


586  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

for  a  street  assessment.1  So,  in  Maryland,  the  exemption  of 
property  of  a  cemetery  company  from  "  any  tax  or  public  impo- 
sition whatever,"  does  not  exempt  it  from  a  paving  tax  for  im- 
proving a  street  in  front  of  the  property,  the  court  (in  an  opin- 
ion elaborately  examining  the  subject),  holding  that  the  intent 
of  the  legislature  was  to  exempt  the  property  from  all  taxes  or 
impositions  for  the  purpose  of  revenue,  but  not  to  exonerate  it 
from  charges  inseparably  incident  to  its  location  with  respect 
to  other  property.2  And  the  same  view  has  been  elsewhere 
sanctioned.3 

lots  upon  which  it  was  being  erected  to  be  taxed.  But  qusere  as  to  this 
effect  of  even  an  intentional  omission  by  the  city  council.  If  the  illegal 
exemption  does  not  increase  the  amount  which  others  are  taxed,  they  are 
not  injured.  If  it  does,  should  they  not  compel,  by  mandamus,  the  city  au- 
thorities to  assess  all  the  property  liable  to  taxation?  At  all  events,  it  is  a 
very  serious  doctrine  to  hold  that  the  omission,  even  though  directed  by  the 
council,  should  have  the  effect  to  vitiate  and  overthrow  the  whole  tax  list 
for  the  year. 

1  In  the  matter  of  the  Mayor,  &c.  11  Johns.  77.  This  is  the  leading  case 
on  the  subject,  and  the  point  decided  has  been  generally  approved,  although 
some  of  the  reasons  have  been  criticised:  People*.  Mayor,  &c.  of  Brook- 
lyn, 4  N.  Y.  (4  Comst.)  419,  432,  and  cases  reviewed;  Bleecker  «.  Ballou,  3 
"Wend.  263;  Sharp  v.  Spier,  4  Hill  (N.  Y.),  76,  82;'  ib.  92;  Presbyterian 
Church  v.  City  of  New  York,  5  Cow.  538;  Mayor,  &c.  of  New  York  v.  Cash- 
man,  10  Johns.  96. 

1  Baltimore  v.  Cemetery  Company,  7  Md.  517,  1855.  In  thus  holding,  the 
court  does  not  proceed  upon  the  ground  that  it  was  an  assessment,  and  not  a 
tax,  which  was  sought  to  be  collected  from  the  cemetery  company ;  it*  ad- 
mitted it  was  a  tax,  but  held  it  was  not  such  a  tax  as  was  meant  by  the 
exempting  statute,  which  is  the  sound  view  of  the  subject.  The  Chief  Jus- 
tice observes:  "The  distinction,  if  any,  between  a  'tax'  and  an  'assessment' 
is  not  very  palpable.  The  meaning  of  the  words  is  the  same  in  our  laws: " 
Per  Le  Grand,  C.  J.,  ib.  535.    See,  also,  Dolan  v.  Baltimore,  4  Gill  (Md.)  394. 

8  Pray  v.  Northern  Liberties,  31  Pa.  St.  69,  1850;  Northern  Liberties  v.  St. 
John's  Church,  13  Pa.  St.  104,  1850;  following  11  Johns.  77,  supra.  S.  P. 
Lockwood  v.  St.  Louis,  24  Mo.  20,  1856;  Garrett  v.  St.  Louis,  25  Mo.  505; 
Egyptian  Levee  Company  v.  Hardin,  27  Mo.  495.  In  the  case  of  the  St. 
Louis  Public  Schools  v.  St.  Louis,  26  Mo.  468,  following  Loakwood  v.  St. 
Louis  (local  assessment  on  church  property),  24  Mo.  20,  it  was  held  that  the 
•real  estate  of  the  board  of  public  schools  of  a  city  (a  distinct  corporation) 
was  liable  to  a  local  assessment  for  sewers,  sidewalks,  opening  streets,  &c. ; 
but  qusere:  Emery  v.  Gas  Company,  28  Cal.  345, 1865;  Taylor  v.  Palmer,  31 
CaL  240, 1866;  Brightman  v.  Kirner,  22  Wis.  54.  Exemption  of  an  institu- 
tion "from  all  taxation  by  state,  parish,  or  city,"  is  not  an  exemption  from 
sidewalk  or  street  assessments:  Lafayette  v.  Male  Orphan  Asylum,  4  La.  An. 
1,  1849. 


CH.  XIX.J      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  587 

§  617.  But  aside  from  the  rule  of  strict  construction  which 
applies  to  exemptions  from  taxation,  the  cases  cited  in  the  pre- 
vious section  will  show  that  there  is,  in  their  ordinary  use,  a  rec- 
ognized difference  between  the  words  "  tax"  and  "assessment,"  and 
that  the  one  does  not  always,  or  usually,  include  the  other. 
Thus,  a  constitutional  provision  that  "  Taxation  shall  be  equal 
and  uniform  throughout  the  state,"  does  not  apply  to  local 
assessments  upon  private  property  to  pay  for  local  improve- 
ments.1 So  a  provision  of  the  constitution  of  a  state  which 
requires  "the  rule  of  taxation  to  be  uniform,"  in  connection 
with  another  provision,  that  "  It  shall  be  the  duty  of  the  legis- 
lature to  provide  for  the  organization  of  cities,  and  to  restrict 
their  power  of  taxation,  assessment,  &c,  so  as  to  prevent  abuses 
in  assessments  and  taxation,"  is  construed  not  to  apply  to 
special  assessments  by  municipal  corporations,  made  by  author- 
ity of  the  legislature,  for  local  improvements.2 

So  a  railroad  charter  exempting  the  company  (in  consideration  of  the 
payment  of  a  certain  tax)  from  "any  other  or  further  tax  or  imposition  upon 
it,"  does  not  exempt  it  from  liability  for  an  assessment  upon  houses  and  lots 
owned  by  it  and  benefited  by  the  opening  and  widening  of  a  street ;  but 
the  corporation  cannot,  for  such  a  purpose,  be  assessed  without  reference 
to  the  special  benefit  conferred  upon  property  owned  by  it,  since  such  an 
assessment  would  be,  in  fact,  a  tax  from  which  it  is  exempt:  State  v.  New- 
ark, 3  Dutch.  (N.  J.)  185, 1858.  So  an  exemption  from  "  taxes,  charges,  and 
impositions,"  does  not  exonerate  a  private,  corporation  from  assessments  on 
its  property  for  opening  or  paving  streets  on  which  it  fronts :  Patterson  v. 
Society,  &c.  4  Zabr.  (N.  J.)  385,  1854,  following  Matter  of  Mayor,  &c.  11 
Johns.  77.  Further  illustrations,  see,  also:  Paine  v.  Spratley,  5  Kansas,  525; 
Chicago  v.  Colby,  20  111.  614;  Trustees  v.  Chicago,  12  111.  403;  Ottawa  v. 
Trustees,  20  111.  423.  See,  as  to  difference  between  "tax"  and  "assess- 
ment," and  for  views  not  coincident  with  those  generally  entertained: 
Chicago  v.  Larned,  34  111.  203,  1864;  Ottawa  v.  Spencer,  40111.  211;  Railroad 
Company  v.  Spearman  12  Iowa,  112.    Ante,  Sees.  592,  603. 

1  Draining  Company  Case,  11  La.  An.  338, 1856,  where  the  subject  is  very 
fully  examined.  S.  P.  Surgi  v.  Snetchman  (paving  assessment),  ib.  387 ; 
Yeatman  v.  Crandall  (levee  tax),  ib.  220.    Supra,  Sees.  594,  600. 

2  Weeks  v.  Milwaukee  (street  assessment),  10  Wis.  242, 1860;  Lumsden  v. 
Cross  (street  assessment),  ib.  282;  State  v.  Portage  (street  assessment),  12  ib. 
562 ;  Bond  v.  Kenosha  (harbor  tax  or  assessment),  17  ib.  284.  The  Supreme 
Court  of  Wisconsin  profess  to  follow  the  construction  given  by  the  Supreme 
Court  of  Ohio  to  similar  provisions  in  the  constitution  of  that  state :  Hill 
i).  Higdon,  4  Ohio  St.  243 ;  Peeves  v.  Wood  County,  8  ib.  333.  See  observa- 
tions of  Judge  Cooky :  Const.  Lim.  510,  note.  But  the  principle  of  uni- 
formity is  considered  by  the  court  to  apply  to  ordinary  municipal  taxes : 


588  MUNICIPAL    CORPORATIONS.  [CH.  XIX. 

§  618.  We  have  already  had  occasion  to  refer  to  the  prin- 
ciple that  public  powers  conferred  upon  a  municipality  to  be  ex- 
ercised by  its  council  when,  and  in  such  manner,  as  it  shall 
judge  best,  are  incapable  of  delegation.^  The  principle  extends 
to  the  authority  conferred  upon  a  municipal  corporation  to 
levy  and  collect  taxes  or  to  determine  upon  the  necessity  and 
the  character  of  local  improvements.2 

Weeks  v.  Milwaukee,  supra,  per  Paine,  J. ;  Dean  v.  Gleason,  16  Wis.  1-16. 
In  Bond  v.  Kenosha,  17  Wis.  284, 1863,  the  Supreme  Court  of  Wisconsin 
decided  that  the  provision  of  the  charter  of  the  city  of  Kenosha,  authoriz- 
ing the  council,  for  the  purpose  of  constructing  a  harbor  in  the  city,  to  levy 
a  special  tax  on  all  lands  within  the  city  subject  to  taxation,  not  including 
any  improvements  made  thereon,  was  in  the  nature  of  a  special  assessment  for 
local  improvements,  and  did  not  contravene  any  provision  of  the  constitu- 
tion of  the  state.    Supra,  Sees.  598-600.    Infra,  Sec.  622. 

1  Ante,  p.  108,  Sec.  60,  and  cases  cited. 

2  lb.  Mclnerney  v.  Eeed,  23  Iowa,  410,  1867 ;  Meuser  v.  Eisdon,  36  Cal. 
239.  In  Swartz  v.  Flatboats,  14  La.  An.  243,  1859,  it  was  held  (but  qusere,  as 
to  its  correctness)  that  the  power  to  "alien,  lease,  farm,  and  dispose  of  all 
and  every  kind  of  property,"  and  to  lay  and  collect  taxes  in  such  a  manner 
as  may  be  deemed  expedient,  on  all  steamboats,  &c.  landing  at  the  levee  of 
the  corporation,"  gave  the  corporation  power  to  lease,  for  a  period  of  years, 
to  a  private  person,  the  revenues  of  the  port,  with  the  privilege  of  collecting 
them  in  his  own  name,  and  for  his  own  benefit. 

The  principle  stated  in  the  text  is  thus  enforced  by  the  Court  of  Appeals 
in  Kentucky,  in  a  case  arising  in  the  city  of  Louisville.  In  substance,  the 
court  say,  the  general  council  of  the  city  of  Louisville,  by  ordinance  as  pre- 
scribed in  the  city  charter,  may  direct  or  authorize  the  sidewalks  in  the 
city  to  be  graded,  paved,  curbed,  &c.  at  the  cost  of  the  owners  of  the  prop- 
erty fronting  thereon.  The  council  alone  can  determine  the  necessity  of 
such  improvement,  as  well  as  its  kind  and  character,  and  has  no  authority 
to  refer  the  determination  of  these  matters  to  any  other  body  or  person. 
The  power  to  pass  ordinances  to  improve  streets  is  legislative,  and  cannot 
be  delegated.  It  is  in  effect  a  power  of  taxation,  which  is  the  exercise  of 
sovereign  authority.  To  ordain  generally  that  a  street  or  square  shall  be 
graded  and  paved,  or  "so  much  thereof  as  the  engineer  may  direct,  and  according 
to  specifications  to  be  furnished  by  him,"  is  simply  to  delegate  to  him  the  power 
to  fix  the  grade,  determine  what  materials  should  be  used  for  the  pavement, 
and  how  much  of  the  street  or  square  should  be  thus  improved,  and  is  not 
the  determination  of  the  council  as  to  any  of  these  things.  To  allow  such 
an  ordinance  to  bind  the  property  holder  is,  in  the  opinion  of  a  majority' 
of  the  court,  to  destroy  all  the  safeguards  thrown  around  him  by  law.  Sub- 
sequent acts  of  affirmance  by  the  city  council  cannot  validate  an  invalid 
ordinance :  Hydes  v.  Joyes,  4  Bush  (Ky.),  464.  Robertson,  J.,  non-con- 
curred. But  where  the  act  of  the  legislature  charged  the  burden  of  certain 
local  improvements  upon  the  adjoining  lots,  and  directed  the  street  com'. 


CH.  XIX.J      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  589 

§  619.  Not  only  the  power  to  tax,  but  the  power  to  make 
local  improvements  at  the  expense  of  the  property  benefited, 
is  like  all  other  legislative  power  of  the  municipality, —  a  con- 
tinuing one, —  unless  there  be  something  to  indicate  the  con- 
trary, and  hence  it  is  not  exhausted  by  being  once  exercised.1 
Therefore,  the  power  to  compel  property  owners  to  pave,  ordi- 
narily extends  to  compelling  them  to  re-pave,  when  required  by 
the  municipal  authorities.2 

missioner  to  make  out  the  assessment,  it  is  not  necessary  that  the  city 
assess  the  tax  by  an  ordinance,  and  an  ordinance  to  that  effect,  if  passed, 
is  not  a  delegation  by  the  corporation  of  its  power  of  taxation  :  Schenley 
v.  Commonwealth,  36  Pa.  St.  62, 1859.  In  South  Carolina,  under  a  general 
power  to  the  city  council  to  make  local  assessments  and  to  appoint  officers 
to  execute  the  corporate  powers  and  duties,  it  is  held  not  to  be  a  valid  ob- 
jection to  an  assessment  that  it  was  made,  pursuant  to  ordinances  or  regu- 
lations, by  the  officers  of  the  corporation  and  not  by  the  corporation  itself; 
for  the  city  council  is  to  be  regarded  as  a  local  legislative  body  for  the  pur- 
pose of  making  by-laws,  with  power  to  cause  them,  to  be  carried  out ;  and 
particularly  is  such  an  objection  without  force  when  the  assessments  have 
first  to  be  submitted  to  and  approved  by  the  council :  Cruikshanks  v.  City 
Council,  1  McCord  (South  Car.),  360,  1821 ;  ib.  345.  Compare  City  Council 
v.  Pinckney,  1  Const.  42,  1812 ;  S.  C,  3  Brev.  217.  "Where  such  a  course  is 
expressly  authorized  by  the  charter,  a  grade  for  a  street  need  not  be  previ- 
ously fixed  by  the  council,  but  it  may  require  the  adjoining  owners  to  make 
certain  improvements  according  to  the  direction  of  the  city  paver,  who  may 
thus  determine  the  grade :  State  v.  New  Brunswick,  1  Vroom  (N.  J.),  395, 
1860.     See,  further,  ante,  p.  108,  Sec.  60. 

1  Ante,  Chap.  XVIII.  p.  524,  Sec.  543. 

2  Williams  v.  Detroit,  2  Mich.  560,  1861.  Power  to  "repair  or  pave 
streets,"  authorizes  a  corporation  to  remove  an  old  pavement  and  replace 
it  with  a  new  one  of  a  different  description:  Gurner  v.  Chicago  (Nicholson 
pavement),  40  111.  165,  1866.  In  Municipality  v.  Dunn,  10  La.  An.  57,  1855, 
the  city  sued  to  recover  a  portion  of  the  cost  of  repaving  a  street  in  front 
the  defendant's  lot.  It  appeared  that  the  street  had  been  previously  paved 
with  round  stone,  at  the  expense  of  the  property.  This,  it  was  found, 
would  not  resist  the  heavy  hauling,  and  was  replaced  by  the  one  built  of 
square  block  stone,  for  which  suit  was  brought.  The  defence  was  that 
although  the  right  to  assess  the  property  for  the  first  pavement  was  given, 
yet  the  corporation  had  no  right  to  compel  a  contribution  from  the  same 
property  for  the  second  pavement.  The  majority  of  the  court  held  that 
the  power  to  pave  the  streets  was  a  continuing  power,  to  be  exercised 
when  the  public  good  requires  it,  and  extended  as  well  to  the  making  of  a 
new  in  the  place  of  an  insufficient  pavement  as  to  the  one  first  built — the 
equity  in  both  cases  being  regarded  as  the  same.  As  to  repaving,  compare 
Hammett  v.  Philadelphia,  65  Pa.  St.  146,  cited  supra,  and  see  Lafayette  v. 
Fowler,  34  Ind.  140.  ■    . 


590  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

§  620.  It  is  plain  that  the  powers  of  taxation  conferred  upon 
the  municipal  authorities  by  the  charter  or  organic  act,  and 
the  mode  of  exercising  such  powers  when  prescribed  therein, 
cannot  be  varied  by  ordinances  or  by-laws.1  Therefore,  a  city  cor- 
poration cannot  impose  terms  or  conditions  which  can  affect 
the  validity  of  a  tax  sale  made  within  the  authority  conferred 
by  the  legislature.2  So,  under  a  charter  constituting  the  city 
marshal  the  collector  of  taxes,  and  making  it  his  duty  to  re- 
ceive and  collect  the  taxes  due  the  corporation,  it  is  not  com- 
petent for  the  council  by  ordinance  to  dispense  with  the  duties 
which  the  charter  imposes  upon  this  officer  and  devolve  them 
upon  another.3  So,  under  a  charter  authorizing  a  town  cor- 
poration "to  collect  taxes  upon  all  real  estate  within  the  town, 
not  exceeding  one-half  per  cent  upon  the  assessed  value 
thereof,"  it  cannot  pass  an  ordinance  directing  lots  to  be  taxed 
without  considering  the  value  of  the  improvements  upon  them, 
for  since  buildings  are  part  of  the  land  which  the  legislature 
had  designated  as  the  property  to  be  taxed,  such  an  ordinance 
makes  a  discrimination  which  the  charter  does  not  authorize.* 

§  621.  The  authority  of  municipal  corporations  to  levy  and 
collect  taxes  is  usually  limited  not  only  as  respects  the  rate  of 
taxation,  but  the  objects  of  it.5  Under  grants  of  this  charac- 
ter, the  question  has  arisen  not  only  as  to  what  property  the 
municipality  may,  but  also  as  to  what  it  must,  subject  to  taxa- 
tion for  the  purpose  of  obtaining  revenue,  or  discharging  lia- 
bilities. Thus,  the  city  of  New  Orleans  was  authorized  by 
charter  "to  raise  money  by  taxation,  in  such  manner  as  to  the 

1  Ante,  chapter  on  Ordinances,  p.  277,  Sec.  251 ;  Weeks  v.  Milwaukee,  10 
Wis.  242,  which  holds  that  the  city  cannot  exempt  from  taxation  property 
which  the  laws  make  taxable. 

s  Thompson  v.  Carroll,  22  How.  (U.  S.)  422, 1859. 

"  Placerville  v.  Wilcox,  35  Cal.  21,  1868. 

4  Fitch  v.  Pinckard,  4  Scam.  (111.)  78 ;  approved,  Primm  v.  Belleville,  Illi- 
nois Supreme  Court,  April,  187i,  4  Chicago  Legal  News,  227. 

5  Power  to  levy  taxes  confined  to  kinds  of  property  mentioned  in  the 
charter:  Rabassa  v.  Mayor,  &c.  1  Martin  (La.),  N.  S.  484;  3  ib.  (O.  S.)  218; 
Blanc  v.  Mayor,  1  Martin  (N.  S.),  65;  ib.  (0.  S.)  120;  Harper  v.  Elberton,  23 
Geo.  566;  Municipality  v.  Johnson,  6  La.  An.  20,  1851;  Barrett  v.  Hender- 
son, 4  Bush  (Ky.),  255;  Dubuque  v.  Insurauce  Company  (premiums  re- 
ceived by  local  agent  of  foreign  insurance  company),  29  Iowa,  9. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  591 

council  shall  seem  proper,  upon  real  and  personal  estate"  &c. 
It  was  claimed  that  the  city  was  bound  to  tax  both  species  of 
property  at  the  same  time,  and  that  a  tax  could  not  legally  be 
imposed  upon  either  alone.  This  view,  however,  was  not  sus- 
tained by  the  court,  which  said:  "It  does  not  appear  to  us 
that  the  power  given  to  tax  real  and  personal  estate,  renders  it 
imperative  on  the  corporation  to  tax  both.  By  the  same  sec- 
tion of  the  law,  the  city  council  are  empowered  to  exercise 
their  authority  as  to  them  may  seem  proper."1 

§  622.  But  there  may  be  a  constitutional  limitation  both  upon 
the  legislative  and  municipal  power  to  select  one  class  of 
property  for  taxation  and  omit  another.  In  an  important  ease 
relating  to  this  subject,  there  was  a  constitutional  provision 
"that  the  rule  of  taxation  shall  be  uniform,"  &c,  which  was 
considered  to  mean  that  all  kinds  of  property  not  absolutely 
exempt  must  be  taxed  alike,  by  the  same  standard  of  valuation 
equally  with  other  taxable  property,  and  co-extensively  with 
the  territory  to  which  it  applies ;  and  therefore  a  tax  to  pay  a 
city  debt  ordered  to  be  levied  exclusively  upon  the  real  prop- 
erty within  the  city,  is  a  discrimination  in  favor  of  personal 
property,  and  violates  the  uniformity  required  by  the  consti- 
tution, and  is  void.2 

§  623.  Power  to  tax  real  and  personal  estate  within  the  city 
corporation  does  not  confer  the  right  to  tax  capital  employed  in 
merchandise,  distinct  from  the  articles  of  property  in  which 
such  capital  is  invested.3 

1  Oakley  v.  Mayor,  &c.  1  La.  1,  1830 ;  S.  P.  Municipality  v.  Duncan,  1  La. 
An.  182,  1847.  The  power  of  a  city  corporation  to  levy  a  general  tax  upon 
one  species  of  property — for  example,  real  estate — and  to  omit  personal 
property,  was,  under  the  construction  of  special  charter  provisions,,  sus- 
tained in  the  case  of  Frederick  v.  Augusta,  5  Geo.  561, 1848 ;  Primm  v.  Belle- 
ville, Illinois  Supreme  Court,  1872,  reported  in  4  Chicago  Legal  News,  227. 

''  Gilman  v.  Sheboygan,  2  Black  (IT.  S.),  510, 1862,  approving  on  the  con- 
stitutional point ;  Knowlton  v.  Supervisors,  9  Wis.  410 ;  Weeks  v.  Milwaukee, 
10  ib.  242;  Sanderson  v.  Cross,  ib.  282;  Attorney  General  v.  Plank  Eoad 
Company,  11  ib.  42;  Zanesville  v.  Richards,  5  Ohio  St.  589;  Exchange  Bank 
v.  Hines,  3  ib.  1.  See  Muscatine  v.  Railroad  Company,  1  Dillon,  C.  C.  536. 
Ante,  p.  88,  Sec.  42.    Supra,  Sec.  593,  el  seq.  617,  620, 

8  Municipality  v.  Johnson,  6  La.  An.  20, 1851. 


592  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

§  624.  Authority  in  the  charter  of  a  municipal  corporation 
to  tax  "all  real  and  personal  estate  within  the  corporate  limits 
of  the  city,"  was  held,  in  view  of  the  language  and  history  of 
legislation  in  the  state  as  to  the  subject  matter  of  taxation,  not 
to  confer  upon  the  corporation  power  to  tax  income  or  particu- 
lar occupations.1 

§  625.  One  of  the  most  usual  of  the  express  limitations 
upon  the  power  of  municipal  taxation  is  the  one  confining  it 
to  property  within  the  corporation.  What  property  is  to  be  con- 
sidered within  the  municipality,  so  as  to  give  the  right  to  tax 
it,  is,  in  some  instances,  hard  to  determine.2  With  respect  to 
the  situs  of  real  estate,  there  can,  ordinarily,  be  no  doubt. 
But  as  respects  personal  property,  its  situs  is  often  difficult  to 
settle.  If  the  property  is  tangible  and  actually  situate  within 
the  municipality,  it  is  plain  that  it  may  be  taxed  by  it,  under 
the  authority  we  are  considering,  irrespective  of  the  residence 
or  domicil  of  its  owner.3 

§  626.  In  Indiana,  where  a  city  had  authority  by  charter  to 
tax  all  property  "within  its  limits,"  it  was  holden  that  the  share 
of  the  part  owner  of  a  steamboat,  or  the  boat  itself,  though  in  the 
course  of  her  voyages  it  necessarily  touched  at  the  city,  was 
not  subject  to  taxation  by  the  city,  though  the  owner  or  part 

1  Savannah  v.  Hartridge,  8  Geo.  23,  1850;  distinguished  from  cases  in 
South  Carolina,  which  hold  that  the  city  of  Charleston,  under  the  power  to 
levy  taxes  on  "taxable property,"  may  tax  income:  Linning  ».  Charleston, 
1  McCord,  345;  1  Nott&McCord,  527. 

2  St.  Louis  v.  The  Ferry  Company,  11  Wall.  423, 1870.  It  is  obvious,  says 
Mr.  Justice  Swayne,  in  this  case,  that  the  purpose  of  the  legislature  in  con- 
ferring authority  of  this  nature  was  not  to  tax  property  through  the  pro- 
prietor, but  to  tax  things  themselves,  by  reason  of  their  being  "within  the 
city:"  lb.  431 ;  Trigg  v.  Glasgow,  2 Bush  (Ky.),  594. 

3  St.  Louis  v.  The  Ferry  Company,  11  Wall.  423,  430,  per  Siuayne,  J. ;  Fin- 
ley  v.  Philadelphia,  32  Pa.  St.  381';  Mills  v.  Thornton,  26  111.  300;  Railroad 
Company  v.  Morgan  County,  14  111.  163 ;  St.  Louis  v.  Wiggins  Ferry  Com- 
pany, 40  Mo.  580,  1867;  Hoyt  v.  Commissioners  of  Taxes,  23  N.  Y.  228; 
New  Albany  v.  Meekin,  3  Ind.  481,  cited  infra;  People  v.  Mies,  35  Cal.  282. 
As  to  taxation  of  personal  property  where  the  owner  is  a  corporation  or 
has  his  domicil  in  one  town  and  does  business  in  another,  see  Gardiner, 
&c,  Company  v.  Gardiner,  5  Greenl.  (Maine)  133,  and  cases  there  cited. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  593 

owner  be  domiciled  or  resident  therein.1  So,  in  Illinois,  under 
power  to  tax  property  "within  the  limits  of  the  city,"  a  steam- 
boat belonging  to  a  resident  of  the  city,  but  registered  else- 
where, and  only  touching  at  the  city  during  her  trips  up  and 
down  the  river,  cannot  be  taxed.2 

§  627.  So  a  municipality,  under  the  power  to  tax  property 
"within  the  city,"  has  been  held  not  to  be  authorized  to  tax 
the  ferry  boats  of  a  foreign  private  corporation,  whose  chief  re- 
lation to  the  city  was  regarded  as  being  "  merely  that  of  con- 
tact there  as  one  of  the  termini  of  their  transit  across  the  river- 
in  the  prosecution  of  their  business." 3    Under  the  facts,  as  re- 

1  New  Albany  v.  Meekin,  3  Ind.  481,  1852.  As  to  place  of  taxation: 
Evansville  v.  Hall  (domicil ;  insurance  stock),  14  Ind.  27 ;  Beiman  v.  Shepard 
(domicil;  situs  of  personal  property),  27  Ind.  288;  Madison  v.  Whitney 
(bank  stock),  21  Ind.  261;  Powell  v.  Madison  (pork  owned  by  non-residents 
but  slaughtered  and  stored  in  city),  21  Ind.  335;  18  ib.  33.  Perkins,  J.,  in 
delivering  the  opinion  of  the  court  in  the  case  first  cited,  says :  "  We  do  not 
think  that,  for  the  purposes  of  taxation,  a  court  is  authorized  to  apply  the 
rule  of  law  governing  the  personal  estate  of  deceased  persons  which  re- 
gards its  situs  as  following  the  domicil  of  the  owner.  Surely,  no  one  would 
.risk  asserting  the  general  proposition  that,  under  the  charter  of  New 
Albany,  all  the  personal  property  owned  by  every  resident  of  the  city,  no 
matter  where  situated,  was  liable  to  be  taxed  by  said  city ;  that  if  a  citizen 
of  New  Albany  was  a  partner  in  a  steamboat  plying  on  some  river  in  Cal- 
ifornia, or  in  a  flock  of  sheep  kept  in  Kentucky,  in  some  part  of  Floyd 
county,  in  this  state,  out  of  the  corporation  of  New  Albany,  he  was  liable 
to  be  taxed  for  it  under  its  charter.  We  do  not  deny  that  the  state  might 
have  authorized  it  to  tax  such  property,  but  we  think  she  has  not:"  3 
Ind.  (Port.)  483. 

'2  Wilkey  v.  Pekin,  19  111.  160,  1857.  But,  in  Alabama,  a  municipal  cor- 
poration with  power  to  lay  taxes  "  on  real  and  personal  estate  within  the 
city "  was  held  authorized  to  levy  a  tax  on  a  steamboat  owned  by  a  resi- 
dent of  the  city  and  navigating  the  waters  of  a  stream  on  which  the  city 
was  situate.  And  the  authority  to  tax  was  declared  to  extend  even  to 
cases  where  the  owner  of  the  boat  was  a  non-resident  of  the  state,  if  he  re- 
sided in  the  city  during  the  business  season.  And  the  power  to  tax  in 
such  cases  was  held  to  exist  although  the  boats  were  registered  and  en- 
rolled as  coasting  vessels  under  the  laws  of  the  United  States :  Battle  v. 
Mobile,  9  Ala.  234,  1846. 

See,  further,  as  to  taxation  of  loots  and  vessels:  Oakland  o.  Whipple,  39 
Cal.  112 ;  Hays  v.  Pacific  Steamship  Company,  17  How.  (U.  S.)  598 ;  Hoyt  v. 
Commissioners  of  Taxes,  23  N.  Y.  224;  St.  Joseph  v.  Railroad  Company,  39 
Mo.  476. 

8  St.  Louis  v.  The  Ferry  Company,  ,11  Wall.  423, 1870. 

75 


594  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

ported,  the  question  is  certainly  a  close  one,  and  had  previously 
been  decided  the  other  way  by  the  Supreme  Court  of  Missouri.1 

§  628.  The  property  of  a  street  railway  company,  including 
its  road  bed,  situate  within  the  limits  of  a  municipal  corponi- 
tion,  is  ordinarily  subject  to  its  taxing  power;  and  if  no  differ- 
ent provision  be  made,  it  has  been  held  that  a  street  railroad 
may  be  taxed  as  real  estate.2  An  exclusive  municipal  grant  to 
such  a  railway  company  to  use  the  streets  in  the  municipality, 
does  not  exempt  it  from  municipal  control  nor  deprive  the 
municipal  authorities  of  the  right,  otherwise  existing,  to  re- 
quire the  company  to  pay  a  license  or  tax.3  J^or  does  the  pay- 
ment of  a  tax  or  license  of  a  specified  sum  or  amount  on  each 
car  employed  by  a  city  railway  company  to  the  city,  as  required 
by  the  contract  between  the  company  and  the  city,  in  which 
certain  privileges  are  secured  to  the  company,  exonerate  the 
company  from  the  payment  of  an  ad  valorem  tax  on  its  prop- 
erty, horses,  stables,  and  shops,  which  are  assessable  for  mu- 
nicipal purposes.4  So  the  property  of  gas  companies  and  of 
water  companies  within  the  municipality  are,  ordinarily,  taxable 
by  it.5 

§  629.  A  general  statute  of  the  state  provided  that  the 
capital  stock  of  the  State  Bank. should  be  taxable  only  fdr  state 
purposes,  and  afterwards  a  city  corporation  undertook  to  levy 

1  St.  Louis  v.  Wiggins  Ferry  Company,  40  Mo.  580, 1867. 

2  Street  Railroad  Company  Appeal,  32  Cal.  499, 1867 ;  City  Gas  Company 
v.  Thurber,  2  Eh.  Is.  15,  21,  1851,  where  gas  pipes  in  streets  were  taxed  as 
real  estate.  Compare  Gas  Company  v.  County,  30  Pa.  St.  232.  See,  also, 
Railroad  Company  v.  Charlestown,  8  Allen,  330;  Railroad  Company  v. 
"Wright,  2  Rh.  Is.  459;  City  Railway*.  Louisville,  4  Bush  (Ky.),  478.  Ante, 
chapter  on  Streets,  Sec.  571,  p.  546,  n. 

8  State  v.  Herod,  29  Iowa,  123, 1870.    Ante,  Sec.  571. 

*  City  Railway  Company  v.  Louisville,  4  Bush  (Ky.),  478. 

6  Commonwealth  v.  Lowell  Gas  Company,  12  Allen,  75.  Pipes  laid  in  the 
streets  of  a  city  by  a  gas  company,  under  a  grant  in  their  charter,  are  fix- 
tures, and  taxable  as  real  estate :  Providence  Gas  Company  v.  Thurber,  2 
Rh.  Is.  15,  1851.  But  see  Gas  Company  v.  County,  30  Pa.  St.  232,  1858. 
Lessee  and  proprietor  of  city  water  works  for  a  term  of  years,  whose  con- 
tract of  lease  did  not  stipulate  for  exemption  from  city  taxation,  was  held 
taxable  in  respect  to  such  works,  they  being  treated  as  real  estate :  Stein  «. 
Mobile,  24  Ala.  591, 1854. '  S.  P.  in  Stein  v.  Mobile,  17  ift.  234. 


CH.  XIX.J     MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  595 

and  collect  a  municipal  tax  on  certain  real  estate  owned  by 
the  bank  and  forming  a  part  of  its  capital  stock ;  but  this,  it 
was  adjudged,  could  not  be  done,  the  city  and  its  powers  being 
entirely  under  the  control  of  the  legislature.1 

1  State  Bank  v.  Madison,  3  Ind.  43, 1851 ;  Same  v.  Brackenridge,  7  Blackf. 
(Ind.)  395, 1845.  See,  also,  Gardner  v.  State  (holding  under  a  charter  that 
a  state  tax  was  in  lieu  of  all  local  taxes),  1  Zabr.  (N.  J.)  557.  So,  in  Louisi- 
ana, a  restriction  upon  the  state  in  reference  to  the  taxation  of  banks  was 
held  to  extend  to  municipal  corporations  deriving  their  authority  from  the 
state :  New  Orleans  v.  South  Bank,  11  La.  An.  41 ;  Municipality  v.  Bank, 
5  ib.  394 ;  New  Orleans  v.  Bank,  10  ib.  735 ;  New  Orleans  v.  Bank,  15  ib.  89. 
A  village  corporation  was  authorized  "  to  raise  money  by  a  tax  to  be  as- 
sessed upon  the  freeholders  and  inhabitants,  according  to  law,"  and  it  was 
decided  that  a  banking  corporation  located  and  doing  business  in  the  vil- 
lage was  an  inhabitant,  and  taxable :  Ontario  Bank  v.  Burnell,  10  Wend.  186, 
1833. 

As  to  taxation  of  banks  and  bank  stock  by  municipalities  in  which  the 
banks  are  located :  Madison  v.  Whitney,  21  Ind.  261 ;  Evansville  v.  Hall, 
14  Ind.  27 ;  King  v.  Madison,  17  Ind.  48 ;  Connersville  v.  Bank,  16  Ind.  105  ; 
State  Bank  v.  Madison,  3  Ind.  43 ;  Madison  ».  Whitney,  21  Ind.  261 ;  Gordon 
v.  Baltimore,  5  Gill  (Md.),  231.  Compare  Gordon  v.  Appeal  Tax  Court,  3  How. 
(IT.  S.)  133  ;  Bank  v.  Town  Council,  10  Rich  (South  Car.),  Law,  104 ;  State  v . 
City  Council,  5  ib.  561  (dividends) ;  Bank  v.  City  Council,  3  ib.  342  (real 
property) ;  Bulow  v.  City  Council,  1  Nott  &  McCord,  527  (shares  in  United 
States  Bank) ;  Cherokee  Insurance  Company  v:  Justices,  28  Ga.  121 ;  The 
Bank  v.  Mayor,  &c.  Dudley,  130,  1832.  See  Mayor  v.  Hartridge,  8  Ga.  23 ; 
Nashville  v.  Thomas,  5  Coldw.  (Tenn.)  600, 1868 ;  O'Donnell  v.  Bailey,  24 
Miss.  386. 

Municipal  taxation  of  railroads :  Railroad  track  and  property  held  liable 
to  municipal  taxation  in  the  towns  or  cities  where  situate :  Railroad  Com- 
pany v.  Wright,  5  Rh.  Is.  459 ;  approved,  Railroad  Company  v.  Connelly, 
10  Ohio  St.  Rep.  159, 164.  To  same  effect :  Railroad  Company  v.  Clute,  4 
Paige,  Ch.  384 ;  Wheeler  v.  Railroad  Company,  12  Barb.  227 ;  Railroad  Com- 
pany v.  County  of  Morgan,  14  111.  163.  And  such  property  is  subject,  also, 
to  special  taxes  and  assessments :  Railroad  Company  v.  Connelly,  10  Ohio 
St.  159-164, 1859 ;  Railroad  Company  v.  Spearman,  12  Iowa,  112.  Further, 
as  to  the  liability,  under  special  statute  or  charter  provisions,  of  railroads, 
their  property  and  stock,  to  municipal  taxation :  Davenport  v.  Railroad 
Company  (rolling  stock  and  real  estate),  16  Iowa,  348.  The  views  of  Wright, 
C  J.,  and  Dillon,  J.,  were  subsequently  adopted  by  the  court  in  a  recent 
case  not  yet  reported:  Railroad  Company  v.  Alexandria,  17  Gratt.  (Va.) 
176 ;  Railroad  Company  v.  Lafayette,  22  Ind.  262, 1864,  as  to  power  and 
mode  of  taxing  railroads  in  Indiana ;  Railroad  Company  v:  State  (rolling 
stock),  25  Ind.  177 ;  Applegate  v.  Ernst,  3  Bush  (Ky.),  648 ;  Rome  Railroad 
Company  v.  Rome,  14  Ga,  275 ;  Augusta  v.  Railroad  Company,  26  Ga.  651, 
1858 ;  Richmond  v.  Daniel,  14  Gratt.  (Va.)  385, 1858  ;  Baltimore  v.  Railroad 
Company,  6  Gill  (Md.),  288 ;  North  Mo.  Railroad  Company  v.  Maguire,  Su- 
Dreme  Court  Mo.  1872,  not  yet  reported. 


596  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

§  630.  The  legislature  may  authorize  municipal  corpora- 
tions to  impose  taxes  upon  persons  whose  ordinary  avocations 
are  pursued  within  the  corporate  limits,  although  residing  beyond 
those  limits,  the  same  as  upon  residents.1 

§  631.  The  power  to  tax  must  be  fairly  and  impartially 
exercised  by  the  municipal  authorities  who  cannot  discriminate 
between  residents  and  non-residents  by  taxing  the  property  of  the 
latter  within  the  corporation  at  a  higher  rate,  or  in  a  different 
manner,  from  the  like  property  of  the  former.2 

§  63i2.  The  usual  provisions  in  the  constitutions  of  the 
different  states  concerning  taxation  do  not  prohibit  the  legisla- 

Choses  in  action,  &c. :  In  Johnson  v.  Oregon  City,  2  Oregon,  327,  1868, 
notes  and  mortgages  belonging  to  a  resident  inhabitant  were  held  taxable, 
although  deposited  outside  of  the  city.  But  in  Johnson  v.  Lexington,  14 
B.  Mon.  648-661,  1854,  authority  to  a  municipality  to  tax  real  and  personal 
property  was  held  limited  to  visible  property  actually  situated  within  it, 
and  not  to  extend  to  debts  and  choses  inaction.  See,  in  same  state,  Louisville 
v.  Henning,  1  Bush  (Ky.),  381,  as  to  taxability  of  money  and  things  in  action. 
Power  to  a  municipality  "to  levy  and  collect  a  tax  upon  every  species  of 
property,  real  and  personal,  within  the  city,  subject  to  taxation  by  the  laws 
of  the  state,"  was  held,  in  Georgia,  to  give  no  authority  to  levy  a  tax  upon 
notes  belonging  to  a  resident,  and  within  the  city,  where  the  makers  do  not 
reside  therein  :  Bridges  v.  Griffin,  33  Ga.  113, 1861.  Power  to  tax  aU  per- 
sonal estate  gives  authority  to  tax  money  loaned :  Trustees  v.  McConnel,  12 
111.  138, 1850. 

1  Worth  v.  Payetteville,  1  Winst.  (North  Car.)  part  II.  70,  1864.  What 
property  may  be  taxed  under  such  authprity  :  lb.  As  to  right  to  tax  (un- 
der special  charter  provisions)  persons  residing  without,  but  exercising  a 
trade  or  calling  vrilhin,  the  corporation,  see,  also,  State  v.  City  Council,  2 
Speers  (South  Car.),  Law,  623 ;  ib.  719.  What  may  be  taxed  under  authority 
to  tax  "income  and  profits"  of  non-residents  doing  business  within  the 
corporation,  see  City  Council  ads.  State,  2  Speers  (South  Car.),  Law,  719. 
Taxableness  of  goods  owned  elsewhere,  but  sold  on  commission  by  residents 
of  the  municipality  :  Cumming  v.  Mayor,  E.  M.  Charlt.  (Ga.)  26  ;  Green  v. 
Mayor,  *.  368;  Paddleford  v.  Mayor,  14  Ga.  438,  criticising  Brown  v.  Mary- 
land, 12  Wheat.  419 ;  Peace  v.  Augusta,  37  Ga.  597. 

2  City  Council  ads.  State,  2  Speers  (South  Car.),  Law,  719,  1844;  Nashville 
v.  Althrop,  5  Coldw.  (Tenn.)  554,  1868.  In  this  last  case  it  was  held  that 
there  could  be  no  discrimination  between  merchants  selling  by  sample  and 
those  doing  business  in  a  different  manner :  Statutes  authorizing  the  "  reg- 
istration and  taxation"  of  vehicles  using  the  paved  streets  of  a  town  are 
strictly  construed ;  and  such  an  act  was  held  not  to  extend  to  non-residents : 
Bennett  v.  Birmingham,  31  Pa.  St  15, 1850.        Ante,  Sees.  540,  604. 


CH.  XIX.]       MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  597 

tures  from  imposing,  or  authorizing  municipal  authorities  to 
impose,  taxes  upon  trades,  special  professions,  and  occupations.1 

§  633.  The  extent  of  the  power  of  the  legislature  over  mu- 
nicipal corporations  generally,2  including  the  power  to  fix  and 
change  the  corporate  boundaries?  has  been  before  adverted  to. 
"Where  the  boundaries  have  been  originally  fixed  or  subse- 
quently changed  so  as  to  include  within  them  rural  or  agricul- 
tural lands  which  have  never  been  platted,  aro  not  needed  for 
town  lots,  and  which  receive  no  direct  benefit  from  the  mu- 
nicipal government  or  expenditures,  questions  have  arisen 
respecting  the  right  to  subject  such  lands  to  ordinary  municipal 
taxation.     The  power  of  the  legislature  to  fix  or  enlarge  the 

1  Sacramento  v.  Crocker,  16  Cal,  119;  Simmons  v.  State,  12  Mo.  268; 
Gilkerson  v.  Justices  (taxation  of  offices),  13  Gratt.  (Va.)  577,  1856;  Se- 
lectmen v.  Spalding,  8  La.  An.  87,  taxability  of  "floating  palaces,"  or  boats 
for  circus  exhibitions,  affirmed :  lb.;  Nashville  v.  Althrop,  5  Coldw.  (Tenn.) 
554;  Mason  v.  Lancaster  (tavern  keeper),  4  Bush  (Ky.),  406;  The  .Germania 
r.  The  State  (taxation  of  amusements),  7  Md.  1 ;  Sears  v.  West  (billiard 
tables),  1  Murph.  (North  Car.)  291 ;  Commissioners  v.  Patterson  (tax  on  re- 
tailers, &c),  8  Jones  (North  Car.),  Law,  182;  Keller  ».  State  (taxation  by 
license  on  beer  manufacturers),  11  Md.  525;  31  Iowa,  493;  lb.  102. 

"The  power  of  the  state  to  tax  professions  is  unquestioned  (Simmons  v. 
State,  12  Mo.  268),  and  the  state  may  delegate  the  authority  [to  municipal 
corporations],  but  it  should  be  done  in  clear  and  unambiguous  terms" 
Per  Wagner,  J.,  St.  Louis  v.  Laughlin,  Supreme  Court  of  Missouri,  March 
term,  1872,  not  yet  reported.  A  provision  in  the  charter  of  a  city  giving  it 
power  to  license,  regulate,  and  tax  certain  enumerated  classes  of  persons 
and  business,  and  concluding'  with  the  words  "  and  all  other  business, 
trades,  avocations)  and  professions  whatever,"  was  held  not  to  confer  the 
power  to  require  a  license  tax  from  lawyers,  as  they  were  not  of  the  same 
generic  character  or  class  with  those  specified  ■  lb. 

Under  authority  to  collect  taxes  on  "  auctioneers,  transient  dealers,  and 
pedlars,"  a  municipal  corporation  may  impose  a  tax  either  upon  the 
amount  of  the  sales  of  such  persons,  or  in  the  form  of  a  license  or  tax  upon 
the  privilege  of  selling :  Carroll  v.  Mayor,  &c.  12  Ala.  173, 1847.  In  exer- 
cising this  discretion  it  is  safer  for  the  corporation  to  adopt  the  mode,  if 
any,  by  which  such  persons  are  taxed  by  the  state  law.  Brokers,  who  may 
be  taxed  as:  Portland  v.  O'Neill,  1  Oregon,  218. 

The  right  to  impose  specific  taxes  is  recognized  by  the  constitution  of 
Michigan :  Walcott  v.  People  (taxation  of  express  companies),  17  Mich.  68 ; 
Williams  •».  Detroit  (paving  tax),  2  Mich.  560;  Woodbridge  u. 'Detroit,  8 
Mich.  274.    In  Wisconsin,  see  Kneeland  v.  Milwaukee,  15  Wis.  454. 

2  Ante,  Chap.  IV.  p.  70,  et  seq. 

3  Ante.  Chap.  VIII.  p.  165,  Sec.  124;  p.  167,  Sec.  126;  p.  168,  Sec.  127. 


598  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

corporate  boundaries  is  not  disputed,  but  it  is  the  power  to 
require  such  lands  to  contribute  to  the  municipal  treasury  that 
has  been  controverted.  In  Kentucky1  (the  decisions  in  which 
have  been  followed  in  Iowa)  the  principle  has  been  adopted 
that  the  "courts  will,  in  such  cases,  control  and  limit  the  tax- 
ing power  to  that  point  or  line  where  it  ceases  to  operate  ben- 
eficially to  the  proprietor  in  a  municipal  point  of  view."2  The 
general  rule  is  that  the  right  to  subject  real  property  to  munic- 
ipal taxation  extends  only  to  such  as  has  been  surveyed  and 
platted  into  lots,  but  the  right  to  tax  may,  under  circumstances, 
extend  to  property  which  has  never  been  platted. 

1  Cheaney  v.  Hooser,  9  B.  Mon.  330;  Sharp  v.  Dunoven,  17  ib.  223;  Maltus 
«.  Shields,  2  Met.  (Ky.)  553;  Southgate  v.  Covington,  15  B.  Mon.  491,  1854. 
The  legislature  may  tax  suburban  property,  within  city  limits,  as  such,  to 
support  needed  local  government  and  the  enforcement  of  police  regula- 
tions in  and  about  the  property  taxed;  but  it  cannot  embrace  such  property 
within  corporate  limits  merely  for  revenue  purposes,  in  order  to  lessen  the 
burden  of  others:   Arbegust  v.  Louisville,  2  Bush  (Ky.),  271, 1867. 

'  Langworthy  v.  Dubuque,  16  Iowa,  271,  per  Lowe,  J.;  approved,  Fulton 
v.  Davenport,  17  Iowa,  407.  The  most  recent  cases  in  the  Supreme  Court  of 
Iowa,  Durant  v.  Kauffman  and  Mitchell  v.  Davenport,  June  term,  1872, 
declare  an  adherence  to  the  rule  established  by  the  previous  cases,  but 
evince  no  disposition  to  extend  the  exemption  from  municipal  taxation. 
C.  J.  Beck,  in  the  course  of  his  opinion,  remarks:  "The  mere  fact  that 
lands  are  included  within  the  limits  of  a  municipal  corporation  does  not 
authorize  their  taxation  for  general  city  purposes.  Under  certain  condi- 
tions, they  are  exempt  therefrom.  These  conditions  are  such  that  the 
property  proposed  to  be  taxed  derives  no  benefits  from  being  within  the 
city  limits.  This  is  the  rule  recognized  by  the  various  decisions  of  this 
court  upon  this  subject.  To  enable  us  correctly  to  apply  the  rule  above 
Stated,  we  must  consider  and  determine  the  character  of  the  benefits 
which  will  render  lands  within  a  city  liable  to  general  municipal  taxation. 
These  are  not  such  as  attach  to  all  lands  near  to  a  city  or  large  town 
whereby  they  are  rendered  more  valuable,  but  are  such  as  accrue  to.  the 
lands  considered  as  city  property.  Lands  lying  contiguous  or  near  to  a 
city,  though  incapable  of  any  use  except  for  agricultural  purposes,-  are 
nevertheless  of  greater  value  on  account  of  their  location  than  those  more 
remotely  situated.  Convenience  to  a  market,  &c,  &c,  adds  to  their  value. 
Therefore,  lands  within  a  city  kept  and  alone  used  for  agriculture,  and  not 
capable  of  being  used  as  city  property,  and  not  demanded  for  that  purpose, 
hbr  possessing  a  value  based  upon  adaptation  for  the  purpose  of  dwellings 
or  business,  cannot  be  considered  directly  benefited  by  the  fact  of  their 
being  within  the  city  limits.  Such  lands  should  not  be  taxed  for  general 
municipal  purposes.  In  determining  the  benefits  accruing  to  such  lands,  a 
controlling  fact  to  be  qpnsidered  is  the  purpose  for  which  they  are  held. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  599 

§  634.  We  deduce  from  the  cases  on  this  subject,  in  the 
states  named,  the  following  rules  or  criteria  to  determine  the 
taxability  of  such  lands :  So  long  as  the  land  thus  embraced  in 
the  corporate  limits  is  used  solely  for  agricultural  or  horticul- 
tural purposes,  or  lies  vacant  and  is  not  laid  out  into  town  lots, 
nor  needed  or  required  for  streets  or  houses  or  other  purposes 
of  a  town,  nor  benefited  by  being  within  the  town,  the  corpo- 
ration authorities  cannot,  for  strictly  corporate  purposes,  tax 
the  property  as  town  property,  without  the  consent  of  the 
owner.  But,  on  the  other  hand,  when  the  property  sought  to 
be  taxed  is  within  the  corporate  limits  in  such  close  proximity 
to  the  settled  and  improved  portions  of  the  town  or  city,  that 
the  corporate  authorities  cannot  open  and  improve  the  streets 
and  alleys  and  extend  its  police  regulations,  &c,  without  inci- 
dentally benefiting  the  property  and  enhancing  its  value — 
where,  in  other  words,  the  property  is  needed  for  buildings 
and  houses,  or  is  benefited  by  the  local  government — then 
the  power  to  tax  the  same  exists,  though  it  may  not  actually 
be  laid  out  into  lots.  With  these  rules,  each  case  must  be  de- 
cided upon  its  special  circumstances.  If  the  owners  have  laid 
off  the  same  into  lots,  it  is  to  this  extent  clearly  liable  to  mu- 
nicipal taxation.     And  property,  though  not  liable  to  ordinary 

If  held  as  city  property,  to  be  brought  upon  the  market  as  such  whenever 
they  reach  a  value  corresponding  with  the  views  of  the  owner,  they  ought 
to  be  taxed  as  city  property.  There  would  neither  be  reason  nor  justice  in 
permitting  a  proprietor  of  a  large  tract  of  land  within  a  City  to  hold  it  for 
an  opportunity  to  bring  it  into  the  market  as  city  lots,  and  for  no  other 
purposes,  under  the  pretence  that  it  is  agricultural  lands,  thus  escaping 
taxation  for  the  general  improvement  of  the  city — the  yery  thing  which 
will  bring  his  lands  into  market,  and  thus  add  greatly  to,  their  value — a 
direct  benefit  to  the  owner.  In  such  a  case,  the  general  improvement  of 
the  city,  the  building  of  streets  near  or  in  the  direction  of  the  lands  so 
held,  the  construction  of  water  works,  public  buildings,  "Ac,,  &c,  by  which 
the  prosperity  of  the  city  is  advanced,  and  an  invitation  to,  population  is 
held  out,  all  bestow  direct  benefits  upon  the  owner  of  such  property.  The 
lands  being  a  part  of  the  city,  in  factj  and  held  hy.  their  owner  for  the  in- 
crease in  value  which  he  expects  because  they  are  city  lots,  are  benefited 
by  the  municipal  government,  and  share  in  the  benefits  derived  by  the  ex- 
penditure of  revenue  raised  by  taxation.  If  property  be  so  held  within  a 
city,  whether  it  be  sub-divided  into  lots,  and  streets  thereon  are  dedicated 
to  public  use,  or  be  inclosed  and  cultivated  as  agricultural  lands,  it  ought 
to  be  subject  to  general  municipal  taxation,  This  result  is  directly  deduci- 
ble  from  the  rule  established  by  the  decisions  of  this  court." 


600  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

municipal  taxation,  may  yet  be  liable  for  road  and  school  taxes, 
where  the  city  or  town  is  a  road  or  school  district,  levying  its 
own  taxes  for  these  purposes.1 

§  635.  The  power  to  pave  streets,  usually  conferred  in  gen- 
eral but  express  terms,  at  the  expense,  in  whole  or  in  part,  of 

1  See,  in  addition  to  the  cases  from  Kentucky,  the  following:  Morford  v. 
Unger,  8  Iowa,  82  (the  first  and  leading  case  in  Iowa) ;  followed  by  Butler 
v.  Muscatine,  11  Iowa,  433 ;  Langworthy  v.  Dubuque,  13  Iowa,  86 ;  Same 
Case,  more  fully,  16  Iowa,  271;  Fulton  v.  Davenport,  17  Iowa,  404;  Buell  v. 
Ball,  20  Iowa,  282,  1866;  Railroad  Company  v.  Spearman,  12  Iowa,  113; 
Deeds  w.'Sanborn,  26  Iowa,  419,  1868;  S.  (J.  22  Iowa,  214;  Deirnan  t.  Fort 
Madison,  30  Iowa,  541, 1870;   S.  P:  Bradshaw  v.  Omaha,  1  Neb.  16. 

In  Buell  v.  Ball,  supra,  Cole,  J.,  in  delivering  the  opinion,  says:  "The 
ground  upon  which  courts  interfere  in  such  cases  is,  that  private  property 
shall  not  be  taken  for  public  use  without  just  compensation.  It  is  the  fact 
of  taking  without  compensation,  and  not  the  time  or  manner,  which  con- 
stitutes the  infraction  of  the  constitutional  inhibition.  The  fact  may  be  as 
effectually  accomplished  by  an  original  incorporation  as  by  an  amend- 
ment, and  the  constitutional  guaranty  would  be  of  little  avail  if  it  could  be 
avoided  by  mere  form."    The  Kentucky  cases  rest  upon  the  same  ground. 

The  practice  of  embracing  within  the  corporate  limits  large  tracts  of  land 
for  the  sole  purpose  of  taxation  is  not  unusual,  and  the  doctrine  adopted 
by  these  courts  is  the  only  way  in  which  the  proprietor  can  be  relieved 
from  a  very  unjust  burden,  and  it  works  no  wrong  to  the  corporation, 
because  the  courts  will  fix  the  line  of  taxability  upon  an  intelligent  consid- 
eration of  the  circumstances  of  each  case.  In  Benoist  v.  St.  Louis,  15  Mo. 
668,  St.  Louis  v.  Allen,  13  Mo.  400,  and  Same  v.  Russell,  9  Mo.  503,  the  only  con- 
stitutional question  decided  was  that  the  legislature  had  the  power  to  extend 
the  city  limits  and  subject  the  property  in  the  annexed  territory  to  taxation, 
against  the  will  or  without  the  consent  of  the  inhabitants  affected  thereby. 
In  Barker  v.  State,  18  Ohio,  514,  1849,  it  was  held  (the  constitutional  ques- 
tion not  being  raised)  that,  for  the  improvement  of  streets,  alleys,  and  side- 
walks (the  charter  discriminating  between  this  and  a  tax  for  "  corporation 
purposes"),  a  municipal  tax  might  be  levied  on  farming  land,  not  laid  out 
into  lots  and  recorded  as  such,  if  within  the  corporate  limits.  Ante,  Sec.  126. 

A  provision  in  a  charter  extending  the  city  limits,  that  land  in  the  an- 
nexed territory,  used  exclusively  for  farming  purposes,  or  vacant  and  unoccu- 
pied, should  be  taxed  not  exceeding  a  specified  rate,  construed,  and  it  was 
held,  not  to  be  an  exemption,  and  therefore  to  be  strictly  construed,  but 
an  equitable  apportionment  of  burdens  with  reference  to  benefits,  and  the 
court  regarded  the  practical  and  beneficial  use  to  which  the  land  was  put,  and 
not  the  purpose  for  which  it  was  held:  Gillette  v.  Hartford,  31  Conn.  351, 
1863.  Taxation  of  rural  property  in  corporate  limits  for  urban  uses,  see: 
New  Orleans  v.  Michoud,  10  La.  An.  763;  Municipality  v.  Ursuline  Nuns,  2 
La.  An.  611;  Same  v.  Michoud,  6  ib.  605;  Serrill  v.  Philadelphia,  38  Pa.  St. 
355. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  601 

the  property  benefited  "by  the  improvement,  has  given  rise  to 
some  decisions  which  may  be  noticed.  In  holding  that  the 
power  to  pave  includes  the  power  to  gravel  streets,  the  Supreme 
Court  of  Illinois  thus  defines  the  word  pavement:  "A  pave- 
ment is  not  limited  to  uniformly  arranged  masses  of  solid 
material,  as  blocks  of  wood,  brick,  or  stone,  but  it  may  be  as 
well  formed  of  pebbles,  or  gravel,  or  other  hard  substances, 
which  will  make  a  compact,  even,  hard  way  or  floor."1 

§  636.  The  power  to  pave  streets  includes  the  power  to  fur- 
nish and  do  all  that  is  necessary,  usual,  or  fit  for  paving;2 
and  on  this  ground  it  has  been  held  that  the  expense  of  grading 
a  street  preparatory  to  paving  is  incident  to  paving,  and  the 
expense  properly  included  in  the  assessment.3  And  in  Penn- 
sylvania it  is  decided  that  the  power  to  pave  includes  the 
power  to  furnish,  or  require  the   party  at  whose  expense  it  is 

1  Per  Caton,  C.  J.,  in  Burnham  v.  Chicago,  24  111.  496,  1860.  The  word 
"pave"  includes  the  usual  means  to  cover  with  stone  or  brick,  so  as  to 
make  a  level  or  convenient  surface  for  horses,  carriages,  or  foot  passen- 
gers. It  includes  macadamizing:  Warren  v.  Henly,  31  Iowa,  31.  Au- 
thority to  pave  authorizes  sidewalk  to  be  made  of  plank  or  other  material,  in  the 
discretion  of  the  council:  Railroad  Company  v.  Mt.  Pleasant,  12  Iowa,  112. 
Authority  to  a  city  to  require  abutting  lot  owners  to  "  pave  the  street," 
includes,  also,  authority  to  require  them  to  build  sidewalks :  Warren  v. 
Henly,  supra.  In  Louisiana,  it  is  held  that 'the  power  to  make  .sidewalks, 
at  the  cost  of  the  adjoining  lot  owners,  includes  the  guttering  and  curbing. 
"By  common  consent,"  remarks  the  court,  "it  is  considered  that  the  term 
pavement  embraces  the  brick  sidewalks,  of  which  the  curb  and  gutters  form 
a  part : "  O'Leary  v.  Sloo,  7  La.  An.  25,  1852.  In  Powell  v.  St.  Joseph,  31 
Mo.  347, 1861,  it  appeared  that  the  defendant  corporation  was  authorized  to 
assess  the  cost  of  paving  streets  to  the  owners  of  adjoining  property  in  pro- 
portion to  their  fronts.  This  was  held  to  authorize  the  city  authorities  to 
apportion  the  cost  of  paving  the  street  crossings,  as  well  as  of  such  parts  of  the 
street  as  were  in  front  of  lots,  among  the  lot  holders  of  the  adjoining 
blocks,  in  proportion  to  the  front  feet.  Abutters  may  be  assessed  for 
paving  street  crossings:  Creighton  v.  Scott,  14  Ohio  St.  438;  Williams  v. 
Detroit,  2  Mich.  560,  1861.  As  to  paving  intersections:  State  v.  Elizabeth,  1 
Vroom  (N.  J.),  365,  1863. 

»  Schenley  v.  Commonwealth,  36  Pa.  St.  29,  30,  60,  1859 ;  McNamara  v, 
Estes,  22  Iowa,  246,  1867.    Ante,  Sec.  397. 

3  State  v.  Elizabeth,  1  Vroom  (N.  J.),  365, 1863 ;  Williams  v.  Detroit,  2 
Mich.  560, 1861.    Ante,  Sec.  397. 

76 


602  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

done  to  pay  for,  curbstones.1    And  so  as  to  trimming  and  guttering; 
these  were  held  to  be  included  in  the  power  to  macadamize/ 

§  637.  •  Under  an  authority  to  make  such  by-laws  as  to  the 
common  council  shall  seem  "necessary  for  the  good  govern- 
ment of  the  city,  and  for  the  regulation  and  paving  of  the 
streets  and  highways,"  a  city  corporation  may  pass  an  ordi- 
nance requiring  the  owner  of  every  lot  fronting  on  a  desig- 
nated section  of  a  public  street  to  fix  curbstones  and  make  a 
brickway  or  sidewalk  in  front  of  his  lot.  Such  an  ordinance  is 
neither  unconstitutional,  illegal,  nor  unreasonable.  It  would 
doubtless  be  otherwise,  it  is  remarked,  if  this  burden  was  laid 
without  special  cause  upon  one  citizen,  all  others  similarly 
situated  being  exempted.3 

1  Schenley  v.  Commonwealth,  supra.  In  this  case  the  city  of  Allegheny 
was  authorized  "  to  grade  and  pave  streets,  sidewalks,"  &c.  and  to  levy 
a  special  tax  upon  the  lots  fronting  thereon  to  defray  the  expense. 
The  question  was  made  that  the  cost  of  curbstones  was  not  a  legitimate 
charge  upon  the  lot  owners.  But  the  court  held  otherwise,  observing  that 
"the  power  to  pave  includes  the  power  to  furnish  and  do  all  that  is  neces- 
sary, usual,  or  fit  for  paving.  How  can  the  court  say,  as  a  legal  proposition, 
that  curbstones  were  neither  necessary,  customary,  nor  fit  for  such  a  work  ? 
Common  observation  shows  that  it  is  usual  to  employ  curbstones  when 
streets,  sidewalks,  or  footways  are  paved,  and  that  they  are  among  the  or- 
dinary means  used.  But  whether  they  are  or  not  was  a  question  for  the 
jury : "    See,  also,  "Williams  v,  Detroit,  2  Mich.  560, 1861. 

2  McNamara  v.  Estes,  22  Iowa,  246, 1867 ;  Williams  v.  Detroit,  just  cited. 
The  substitution  of  new  curbstones  and  gutters  in  a  street  were  held  to  be 
"repairs : "  People  v.  Brooklyn,  21  Barb.  484.    Supra,  Sees.  597,  619. 

8  Paxton  v.  Sweet,  street  commissioner  of  Trenton,  1  Green  (N.  J.),  196, 
1832,  cited  with  approval  by  Putnam,  J.,  in  Boston  v.  Shaw,  1  Met.  130-133, 
1840.  See  Downer  v.  Boston,  6  Cush.  277,  and  observation  (arguendo)  of 
Shaw,  0.  J.,  p.  281,  as  to  vacant  lots.  Assuming  that  the  power  was  prop- 
erly construed,  the  duty  enjoined  by  the  ordinance  could  not  be  enforced 
by  a  sale  of  the  property  unless  authority  to  that  effect  was  unequivocally 
conferred  by  the  legislature.  Construing  certain  acts  in  pari  materia,  the 
court  held  that  the  lessee  for  a  long  term  of  years,  and  not  the  owner  of  the 
fee,  was  the  "proprietor"  or  "owner"  to  assent  to,  or  petition  for,  the  pav- 
ing of  streets  :  Holland  *.  Baltimore,  11  Md.  186,  1857.  Tenant  in  dower 
in  actual  possession  is  an  "owner"  within  the  meaning  of  the  charter  re- 
quiring "owners"  of  lots  to  build  sidewalks  in  front  thereof:  White  e. 
Mayor,  &c.  2  Swan  (Tenn.),  364, 1852.  Power  to  pave  at  the  expense  of  the 
adjacent  owner  being  limited  and  special,  must  be  exercised  strictly  accord- 
ing to  law :  Henderson  v.  Baltimore,  8  Md.  352, 1855.    Supra,  Sees.  605-607. 

As  to  right  to  relief  in  equity  against  illegal  taxes  and  assessments,  see 
Chap.  XXII.  post,  Sees.  727-738. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  603> 


Under  power  to  improve  "  any  street,"  the  city  coun- 
cil is  not  required  to  improve  the  entire  length  of  the  street  or 
none ;  it  may  improve  part,  and  confine  the  assessment  to  the 
lots  adjoining  the  part  improved.1 

§  639.  "Where  the  power  to  pave  depends  upon  the  assent  or 
petition  of  a  given  number  or  proportion  of  the  proprietors  to  he 
affected,  this  fact  is  jurisdictional,  and  the  finding  of  the  city 
authorities  or  council  that  the  requisite  number  had  assented 
or  petitioned  is  not  conclusive,  and  the  want  of  such  assent 
makes  the  whole  proceeding  void,  and  the  non-assent  may  be 
shown  as  a  defence  to  an  action  to  collect  the  assessment,2  or 

1  Scoville  v.  Cleveland,  1  Ohio  St.  133,  approved  and  applied  in  Railroad 
Company  v.  Connelly,  10  Ohio  St.  159-163 ;  S.  P.  Creighton  v.  Scott,  14  ib. 
438.    See,  also,  St.  Louis  v.  Clemens,  36  Mo.  467.  ,  • , 

A  town  was  empowered,  "when  requested  in  writing  by  the  owners  of 
two-thirds  of  the  property  on  any  street,  or  part  thereof,  to  cause  the  same 
to  be  graded,  and  to  levy  the  expense  on  the  property  bounding  on  such 
street,"  &c.  Under  this  charter  the  Court  of  Appeals  of  Maryland  decided 
that  "  the  assent  of  the  owners  of  two-thirds  of  the  property  on  the  whole 
line  of  the  street  to  be  improved  was  a  pre-requisite  to  the  exercise  of  the 
authority  conferred  upon  the  corporation.  If  a  part  only,  is  to  be  improved, 
the  charter  enables  the  corporation  to  grant  an  application  made  for  that 
object  by  the  owners  of  two-thirds  of  the  property  lying  on  that  part,  by 
an  ordinance  directing  that  particular  part  of  the  street  to  be  improved; 
They  can  only  order  the  whole  street  to  be  improved  by  an  application  from, 
two-thirds  of  the  property  owners  on  the  whole  street."  And  it  was  held, 
that  where  the  town,  on  a  petition  of  the  owners  of  two-thirds  of  the 
property  lying  upon  a  part,  only,  of  the  street,  improved  the  whole  street, 
its  action  was  unauthorized,  and  that  it  could  not  enforce  the  collection  of 
the  expenses  of  such  improvement  from  the  adjoining  property  owners  'i 
Swann  v.  Cumberland,  8  Gill  (Md.),  150, 1849.  May  order  sidewalk  upon' 
one  side  only  :  State  v.  Portage,  12  Wis.  562.  Lot  owner  opposite  a  public1 
common  held,  upon  construction  of  the  statutes,  to  be  liable  for  the  expense 
of  grading  and  paving  the  whole,  and  not  simply  half,  of  the  street  in  frontf 
of  his  lot:     McGonigle  v.  Allegheny,  44  Pa.  St.  118,  1862.  ■  i 

2  Henderson  v.  Baltimore,  8Md.  352, 1855;  Carronti.  Martin,  2  Dutch.  (N1,' 
J.)  594,  1857  ;  Camden  v.  Mulford,  2  Dutch.  49,  reversing  S.  C.  ib.  228 ;  State! 
v.  Elizabeth,  1  Vroom  (N.  J.),  176, 1862;  Bouldin  v.  Baltimore,  15  Md.  18,: 
1859;  Holland  v.  Baltimore,  11  Md.  186,  1857;  Kyle  v.  Malin,  8  Ind.  34; 
State  v.  Orange,  32  K.  J.  49 ;  State  v.  Hand,  2  Vroom  (N.  J.),  547 ;  Baltimore 
v.  Eschback,  18  Md.  276, 1861 ;  Wells  v.  Burnham,  20  Wis.  112, 1865 ;  Coving- 
ton v.  Casey,  3  Bush  (Ky.),  698;  Burnett  v.  Sacramento,  12  Cal.  76;  Lexing- 
ton v.  Headley,  5  Bush  (Ky.),  508;  McGuinn  v.  Peri,  16  La.  An.  326,  1861 ;" 
People  v.  Rochester,  21  Barb.  656;  Street  Case,  16  La.  An.  393;  Litchfield"  v. 
Vernon,  41  N.  Y.  123,  1869 ;  Louisville  v.  Hyatt,  2  B.  Mon.  177, 1841 ;  St. 
Louis  v.  Clemens,  36  Mo.  467, 1865.    See,  ante,  Chap.  XIV.  Sees.  400-402. 


604  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

may,  it  has  been  held,  be  made  the  basis  for  a  bill  in  equity  to 
restrain  a  sale  of  the  owners'  property  to  pay  it.1  Accordingly, 
where  a  charter  provided  that  "the  city  council  should  have 
full  power  to  procure  all  streets  to  be  improved  in  any  manner 
they  may  deem  advisable,  at  the  expense  of  the  property  own- 
ers ;  and  that  a  petition  in  writing  to  the  council  of  the  owners 
of  the  larger  part  of  the  ground  between  the  points  to  be  im- 
proved should  be  sufficient  to  authorize  the  council  to  contract 
for  such  improvements :  provided,  further,  that  the  council, 
by  a  vote  of  all  the  members-elect,  may  cause  such  improve- 
ments to  be  made  without  petition  or  consent,"  it  was  held 
that  an  ordinance  authorizing  such  work  not  enacted  at  the 
instance  of  the  property  holders,  nor  on  the  unanimous  vote 
of  the  council,  was  insufficient  to  fix  the  liability  of  the  lot 
owners.2 

§  640.  So,  where  a  statute  enacted  that  "no  contract  should 
be  made  by  the  head  of  any  department  for  work  or  materials 
for  the  city,  unless  for  objects  authorized  by  the  city  council," 
and  the  council  authorized  a  department  to  contract  for  paving, 
with  the  condition  that  the  contractor  be  selected  by  a  majority  of 
the  owners  of  the  front  to  be  paved,  and  who  were  to  pay  the 
cost  of  the  improvement,  it  was  held  that  a  selection  of  the 
contractor  by  a  majority  of  the  lot  owners  was  essential  to 
their  liability  to  the  contractor  to  pay  for  the  paving,  and  that 

1  In  Holland  v.  Baltimore,  11  Md.  186, 1857,  the  city  was  authorized  to  pave 
streets  when  the  proprietors  of  the  majority  of  the  feet  of  ground  fronting 
on  any  street  should  apply,  in  writing,  therefor.  Supposing  that  a.majority 
of  the  proprietors  had  united  in  the  application,  but  which  afterwards 
turned  out  not  to  be  true,  in  consequence  of  one  of  the  signers  not  being, 
in  law,  a  proprietor,  the  city  paved  a  certain  street,  and,  among  others, 
paved  in  front  of  the  plaintiff's  lot,  he  aot  having  signed  the  application. 
After  the  work  had  been  done,  the  city  sought  to  enforce  the  collection  of 
the  amount.  Plaintiff  applied  for  an  injunction  to  restrain  the  sale  of  his 
lot  to  pay  the  assessment.  The  Court  of  Appeals  held :  1.  That  if  the  requi- 
site majority  of  owners  did  not  apply,  the  whole  proceedings  were  null  and 
void.  2.  That  a  non-assenting  owner  might  (notwithstanding  he  did  not 
apply  for  the  writ  until  after  the  work  was  done)  have  an  injunction  to  pre- 
vent the  sale  of  his  property  to  pay  the  unauthorized  assessment :  S.  P. 
Bouldin  v.  Baltimore,  15  Md.  18.    See  31  Iowa,  356,  but  qusete? 

2  Covington  v.  Casey,  3  Bush  (Ky.),  698.    Arte,  p.  273,  See.  247. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  605 

the  city,  by  adopting  the  w,ork  of  a  paver  not  thus  chosen, 
could  not  oblige  the  lot  owners  to  pay  for  it.1 

§  641.  By  one  section  of  the  organic  law  of  a  city  it  was 
authorized,  on  the  petition  of  two-thirds  of  the  owners  of  the 
abutting  property,  to  make  improvement  of  its  streets ;  by  a 
subsequent  section,  power  was  conferred  upon  the  council  to 
order  such  improvements  by  a  two-thirds  vote  of  the  council.  It 
was  held  that  although  proceedings  relative  to  the  improve- 
ment were  commenced  by  petition  from  the  property  holders, 
yet,  having  been  ordered  by  a  two-thirds  vote  of  the  council, 
they  were  valid,  although  two-thirds  of  the  property  owners 
may  not  have  united  in  the  petition  for  the  improvement — 
the  two-thirds  vote  of  the  council  made  the  proceedings  valid, 
notwithstanding  any  defect  in  the  prior  proceedings  of  the 
petitioners.2 

§  642.  It  depends  upon  the  provisions  of  the  special  charter 
or  legislative  act,  whether  or  not  notice  to  the  abutter  or  proprie- 
tor is  necessary  in  order  to  make  him  liable  to  pay  the  expense 
or  cost  of  the  local  improvement,  and  in  what  manner  it  shall 
be  given.  It  is  sometimes  a  condition  precedent  to  the 
authority  to  make  the  assessment  and  sometimes  not.  The 
cases  in  the  notes  will  illustrate  the  views  of  the  courts  under 
various  enactments.3 

1  Beilly  v.  Philadelphia,  60  Pa.  St.  467 ;  distinguished  from  City  v.  Wister, 
11  Casey,  427,  and  City  v.  Burgen,  14  Wright  (Pa.),  539. 

2  Indianapolis  v.  Mansur,  15  Ind.  112,  1860. 

In  a  very  recent  case,  under  the  general  incorporation  act  of  that  state 
(see  ante,  p.  59,  note),  it  is  held  that  the  council  of  a  city  may,  by  a  two- 
thirds  vote,  without  any  petition,  cause  the  grade  of  a  street  which  has 
been  improved,  such  improvements  having  been  paid  for  by  the  owners  of 
the  property  bordering  on  such  street,  and  is  in  good  repair,  to  be  changed, 
and  the  street  as  so  changed  to  be  improved,  and  may  pay  the  damages  oc- 
ccasioned  by  the  change  out  of  the  general  revenue  of  the  city,  and  assess 
the  expense  of  the  improvement  against  the  owners  of  the  adjoining  prop- 
erty, or  cause  such  expense  to  be  paid  out  of  such  general  revenue :  Lafay- 
ette v.  Fowler,  34  Ind.  140.    Supra,  p.  569,  note;  Sec.  619. 

3  Ordinance  requiring  owners  to  repair  street  passed  without  requisite 
notice,  void,  and  the  owners  not  liable  either  on  contract  or  quantum 
meruit:  Cowen  v.  West  Troy,  43  Barb.  48  ;  Brewster  v.  Newark,  3  Stockt. 
Ch.  (N.  J.)  114;  State  v.  Hudson,  5  Dutch.  475;  reversing  S.  C.  lb.  104; 
State  v.  Perth  Amboy,  5  Dutch.  259.   See,  also,  Myrick  v.  La  Crosse,  17  Wis. 


606  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

§  643.  If  the  legislature  has  required  notice  and  provided 
how  it  shall  be  given,  that  mode  must  be  pursued.1  "Where  the 
statute  provides  for  a  notice  by  advertisement,  or  otherwise, 
a  notice  by  publication  is  sufficient.2  Where,  by  charter,  a 
city  is  authorized  to  levy  a  special  tax  on  lots  for  grading,  &c, 
and  "  to  collect  the  same  under  such  regulations  as  may  be 
prescribed  by  ordinance"  and  the  ordinance  passed  in  pursuance 
thereof  provided  that  the  resolution  of  the  council  levying 
such  tax  should  be  -published  in  the  official  paper  of  the  city, 
and  that  thereupon  the  tax  should  be  due  and  payable,  such 
publication  is  necessary  to  the  validity  of  the  tax,  and  without 
it  the  corporation  cannot  enforce  the  payment  thereof.3  The 
notice  to  proprietors  to  make  a  local  improvement,  if  there  be 
no  charter  provision  to  the  contrary,  may,  it  has  been  held  in 
Missouri,  be  contained  in  an  ordinance  directing  the  work  to 
be  done,  of  which  ordinance  the  proprietors  are  bound  to  take 
notice.4    In  a  case  in  Connecticut,  the  charter  of  a  city,  in 

442  ;  Bathbun  v.  Acker,  18  Barb.  393;  Eisley  v.  St.  Louis,  34  Mo.  404;  Pal- 
myra v.  Morton,  25  Mo.  593 ;  Washington  a.  Mayor,  1  Swan  (Tenn.)  177; 
Whyte  v.  Mayor,  2  ib.  364 ;  Ottawa  v.  Railroad  Company,  25  111.  43 ;  Jenks 
v.  Chicago,  48  111.  296 ;  Himmelman  v.  Oliver,  34  Cal.  246. 

Notice  held  not  essential  to  authority  to  make  assessment:  Finnell  v. 
Kates,  19  Ohio  St.  405;  distinguished  from  Welker  v.  Potter,  18  Ohio  St.  85. 
Requisites  of  notice  to  abutter  to  make  local  improvement :  Tufts  v.  Charles- 
town,  98  Mass.  583 ;  Ottawa  v.  Macy,  20  111.  413 ;  Simmons  v.  Gardner,  6  Eh. 
Is.  255;  Baltimore  v.  Bouldin,  23  Md.  328,  1865.  Notice  to  "repave"  is  not 
sufficient  where  the  assessment  is  for  "paving,"  the  works  being  different 
— as  to  converse,  qusere  ?  State  v.  Jersey  City,  3  Dutch.  (N.J.)  536,  1859. 
Notice  of  assessment:  Lowell  v.  Wentworth,  6  Cush.  221;  Williams  v.  De- 
troit, 2  Mich,  560,  1861.  Notice  of  confirmation  of  report  of  commissioners : 
State  v.  Jersey  City,  3  Dutch.  536.  Notice  of  time  and  place  of  hearing  ob- 
jection to  proposed  improvement :  State  v.  Jersey  City,  2  Dutch.  (N.  J.)  444 ; 
State  v.  Jersey  City,  lib.  309;  State  v.  Jersey  City,  4  Zabr.  662;  States. 
Newark,  1  Dutch.  399 ;  State  v.  Elizabeth,  2  Vroom,  547.  Waiver  of  such 
objections:  State  v.  Jersey  City,  2  Dutch.  444. 

1  Ante,  chapter  on  Eminent  Domain,  p.  454,  Sec.  471. 

2  State  v.  Jersey  City,  4  Zabr.  (N.  J.)  662,  1855.    Ante,  Sec.  471. 

*  Dubuque  *.  Wooten,  28  Iowa,  571,  1870. 

*  Palmyra  v.  Morton,  25  Mo.  593,  597,  1857. 

As  to  notice  and  mode  of  giving  the  same  by  publication  or  otherwise,  see 
Simmons  v.  Gardner,  6  Eh.  Is.  255 ;  Scammon  v.  Chicago,  40  111.  146;  Eisley 
v.  St.  Louis,  34  Mo.  404;  Hildreth  v.  Lowell  (sewer),  11  Gray,  345;  Williams 
v.  Detroit,  2  Mich.  560,  1861;    State  v.  Elizabeth,  1  Vroom,  365;    Durant  v. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  607 

1 

effect,  provided  that  the  council  might  order  the  adjoining 
"  proprietor  "  to  build  a  sidewalk,  failing  to  do  which,  the  city 
might  build  it  at  his  expense,  and  the  same  should  be  a  "  lien 
Upon  the  property  and  foreclosed  as  a  mortgage  ;  "  and  it  was 
held  that  a  prior  mortgagee  of  the  lot  owner  was  not  entitled  to 
notice  to  build  the  sidewalk ;  that  his  interest  in  such  a  pro- 
ceeding was  necessarily  connected  with  the  interest  of  the 
mortgagor,  and  that  he  was  liable  to  be  foreclosed  of  his  inter- 
est to  redeem,  unless  he  paid  the  expenses  of  making  the  side- 
walk.1 If  proper  notice  is  not  given,  certiorari  lies  to  remove 
the  record  of  the  proceedings  from  before  the  city  council  into 
the  proper  court,  where,  if  they  are  substantially  defective, 
they  will  be  quashed.2 

§  644.  Authority  to  a  municipal  corporation,  by  its  charter, 
to  repair  and  keep  in  order  its  streets,  is  sufficient,  without 
special  grant,  to  authorize  it  to  construct  drains  and  sewers,  and, 
when  constructed,  the  corporation  will  incidentally  possess  the 
power  to  pass  ordinances  regulating  their  use  and  the  price  at 
which  private  persons  may  tap  them,  and  also  to  protect  them 
against  injury  or  invasion.3 

Jersey  City,  1  Dutch.  309;  State  v.  Jersey  City,  4  Zabr.  (N.  J.)  662,  in 
which,  on  certiorari,  it  was  held  that  where  a  municipal  corporation  exer- 
cises the  power  to  make  improvements,  and  assess  the  expenses  thereof 
upon  the  lands  benefited  thereby,  the  owners  of  lands  assessed  for  such 
improvements,  if  accessible  by  reasonable  diligence,  are  entitled  to  reason- 
able notice  of  the  meeting  of  the  commissioners  for  assessing  the  expenses, 
and  this  although  the  charter  is  silent  on  the  subject  of  notice. 

1  Norwich  v.  Hubbard,  22  Conn.  587,  1853. 

*  Ottawa  v.  Railroad  Company,  25  HI.  43,  1860.  Failure,„after  notice,  to 
object  to  an  assessment  before  the  city  council,  when  it  has  the  power  to 
revise  and  correct,  or  annul  it  and  direct  a  new  assessment,  will  be  held  in 
equity  when  thdparty  applies  for  an  injunction  to  restrain  the  collection 
of  the  assessment  as  a  waiver  of  all  irregularities  in  the  exercise  of  the 
power:  Ib.    Post,  Sec.  738,  note;  Sec.  743,  note. 

As  to  remedy  by  certiorari  and  injunction,  see  chapter  on  Remedies 
Against  Illegal  Corporate  Acts,  post,  Sec.  727,  et  seq. 

"  Fisher  v.  Harrisburg,  2  Grant  (Pa.),  Cas.  291, 1854;  Cone  v.  Hartford,  28 
Conn.  363,  1859.  Construction  of  power;  right  to  change,  &c. :  Borough  v. 
Shortz,  61  Pa.  St.  399;  Stroud  v.  Philadelphia,  ib.  255;  State  v.  Jersey  City, 
1  Vroom  (N.  J.),  148;  State  v.  Jersey  City,  5  Dutch.  (N.  J.)  441;  State  v. 
Jersey  City,  3  ib.  493.    Ante,  Sees.  539,  544. 


608  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

§  645.  It  has  been  decided,  in  Massachusetts,  that  authori- 
ty to  make  needful  and  salutary  by-laws,  or,  perhaps,  authority 
to  make  regulations  for  the  public  health,  will,  in  the  absence 
of  more  specific  power,  authorize  a  city  to  construct  a  com- 
mon sewer,  and  subject  the  owner  of  the  lots  or  land  abutting, 
and  who  use  the  sewer,  to  contribution  for  the  expenditure. 
But  this  contribution  must  be  apportioned  equally  and  fairly, 
or  it  cannot  be  recovered  by  the  city,  either  by  virtue  of  the 
ordinance  which  imposes  it,  or  on  an  indebitatus  count  in  the 
absence  of  express  promise.  The  apportionment  should  be 
made  upon  the  value  of  the  land,  independently  of  the  buildings, 
and  should  -be  settled  at  the  time  of  the  transaction ;  and  an 
ordinance  contravening  these  principles  and  requiring  every 
person  connecting  with  the  common  sewer  to  pay  his  just  pro- 
portion of  the  expense  of  making  the  sewer,  having  reference, 
always,  to  the  last  valuation  of  such  person's  estate  in  the  asses- 
sor's books,  previous  to  the  expenditure,  is  void  for  inequality 
and  unreasonableness.1 


1  Boston  v.  Shaw,  1  Met.  130,  1840.  After  this  decision,  the  legislature  of 
Massachusetts  passed  an  act  (Stat.  1841,  Chap.  CXV.  Genl.  Stats.  1860,  p. 
254,  Sec.  4)  giving  general  authority  to  cities  to  construct  drains  or  com- 
mon sewers,  and  providing  "that  every  person  who  enters  his  particu- 
lar drain  into  the  main  drain  or  common  sewer,  or  who,  by  more  remote 
means,  receives  a  benefit  thereby  for  draining  his  cellar  or  land,  shall  pay 
to  the  city  or  town  his  proportional  part  of  the  charge  of  making  or  repair- 
ing the  same,"  &c.  A  by-law  apportioning  the  assessment  for  building  a 
drain  according  to  the  value  of  the  lands  benefited,  independently  of  im- 
provements thereon,  was  held  valid;  and  the  "remote  benefit"  spoken  of 
by  the  statute  was  considered  to  "mean  the  increased  value  given  to  va- 
cant and  unimproved  lots  by  this  privilege  of  letting  in  drains  from  them  in 
case  buildings  should  subsequently  be  erected.  An  assessment  upon  the 
proprietors  of  land  so  situated  that  it  is,  or  may  be,  benefited  by  the  sewer, 
is  just  and  equal,"  although  it  is  at  the  time  vacant  territory.  The  propri- 
etor of  the  land  is  liable  to  be  charged,  "  although  he  never  actually  uses 
the  drain ;  perhaps  not,  if  there  is  no  prospect  of  the  possibility  of  benefit." 
But  it  does  not  invalidate  an  assessment  that  the  greater  part  of  one  lot  as- 
sessed is  lower  than  the  bottom  of  the  sewer,  as  it  might,  and  probably 
would,  be  graded  so  as  to  receive  as  much  benefit  as  other  lots :  Downer  v. 
Boston,  7  Cush.  277, 1851.  S.  P.  and  affirming  the  validity  of  the  act  of 
1841,  above  cited,  see  Wright  «.  Boston,  9  Cush.  233, 1852,  and  note  r  efer- 
ence  to  People,  &c.  o.  Mayor,  &c.  of  Brooklyn,  6  Barb.  209,  which  was  over- 
ruled, 4  N.  Y.  419;  Patton  v.  Springfield,  99  Mass.  627. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  609 

§  646.  "Where  -the  power  to  make  sewers  was  held  to  be  de- 
rived as  an  incident  to  the  power  of  repairing  highways,  the 
court  expressed  the  opinion  that  the  common  council  were  not 
authorized  to  construct  sewers  for  the  mere  private  conveni- 
ence or  benefit  of  particular  individuals ;  and  that  they  could 
(under  such  circumstances)  "  be  lawfully  made  only  when  the 
commodiousness  of  the  highway  for  its  proper  purposes,  and 
its  safety,  and  the  healthfulness  of  the  vicinity  require  them."  l 

§  647.  If  there  be  no  special  constitutional  limitation,  the  cost 
of  making  sewers  for  the  public  convenience  may  be  directed  by 
the  legislature  to  be  paid  out  of  funds  provided  by  general 
taxation,  or  to  be  assessed  upon  the  abutters,  or  the  property 
specially  benefited.2 

§  648.  Power  to  a  municipal  corporation  to  make  local  im- 
provements, though  the  expense  be  directed  in  the  constituent 
act  to  be  assessed  upon  the  property  benefited,  gives  the  cor- 
poration the  implied  power  to  make  general  contracts  therefor.3 
But  as  to  agreements  made  between  the  corporation  and  a 
contractor  to  do  the  work,  the  abutters  or  property  owners  on 
whom  the  expense  falls  are  not  parties,  but  are  brought  into 
direct  relation  with  the  proceedings  for  the  local  improvement 
for  the  first  time  when  the  assessment  is  made.  The  assess- 
ment is  a  tax  levied  by  the  corporation  upon  property  to  defray 
the  expense  of  the  improvement,  and  the  suit  to  collect  it 
(though  brought  by  the  contractor  under  authority  given 
for  that  purpose)  is  not  the  subject  of  set-off  or  counter  claim.4 

1  Cone  v.  Hartford,  28  Conn.  363,  375, 1859.  "  Laying  out"  of  sewer  de- 
fined ;  what  property  liable  to  assessment  of  benefits ;  defence  to  assess- 
ment because  sewer  is  a  nuisance,  see  ib. 

2  Supra,  Sees.  596,  597,  598,  599 ;  Stroud  v.  Philadelphia,  61  Pa.  St.  255 ; 
Philadelphia  v.  Tryon,  35  Pa.  St.  (11  Casey)  401 ;  Hildreth  v.  Lowell,  11 
Gray,  345  ;  Wright  v.  Boston,  9  Cush.  233 ;  State  v.  Jersey  City,  5  Dutch.  (N. 
J.)  441 ;  Cone  v.  Hartford,  28  Conn.  363-374.  An  arbitrary  rule  apportion- 
ing cost  according  to  frontage  alone,  disapproved :  Clapp  v.  Hartford,  35 
Conn.  66 ;  State  v.  Hudson,  5  Dutch.  (N.  J.)  104, 1860. 

3  Cummings  v.  Mayor  of  Brooklyn,  &c.  11  Paige,  596,  1845. 

4  Himmelman  v.  Spanagel,  39  Cal.  389 ;  Same  v.  Cofran,  36  Cal.  411 ; 
Meuser  v.  Eisdon,  ib.  239 ;  Emery  v.  Gas  Company,  28  ib.  345.  But  a  de- 
fence good  against  the  city  is  good  against  the  contractor :  St.  Louis  v. 
Clemens,  36  Mo.  469,  1856.    Ante,  Sees.  383,  388, 397,  400. 

77 


610  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

But  although  the  property  owners  are  not  privies  or  parties  to 
such  contracts,  yet,  to  a  certain  extent,  and  in  a  substantial 
sense,  the  municipality  is  their  agent,  and  since  the  burden  to 
pay  rests  upon  them,  they  have  a  right  to  insist  on  a  faithful 
performance  of  the  contract,  and  the  corporate  authorities 
cannot  dispense  with  such  performance.1 

§  649.  To  entitle  a  municipal  corporation  to  recover  from  the 
abutter  the  expense  of  constructing  a  sidewalk,  or  other  local 
improvement,  it  must  comply  with  all  conditions  precedent,  whether 
prescribed  by  charter  or  ordinance.2  Therefore,  if  the  order 
of  the  city  council  requires  the  sidewalk  to  be  built  on  the  side 
of  a  certain  street,  the  city  cannot  recover  of  the  lot  owner  an 
assessment  for  building  a  sidewalk  several  feet  from  the  side 
of  such  street.3  And  where  the  ordinances  of  the  city  provide 
that  sidewalks  shall  be  constructed  of  such  materials  as  the 
city  council  may  order,  the  city  cannot  recover  an  assessment 
unless  the  council  has  prescribed  the  kind  of  materials  out  of 
which  it  should  be  built.* 

§  650.  In  Missouri,  in  actions  to  recover  the  amount 
charged  against  a  lot  for  local  improvements  in  front  thereof, 
the  liberal  doctrine  is  adopted,  that  a  substantial  compliance 
with  the  law  is  sufficient,  and  it  is  not  necessary  for  the  city 
to  prove  a  strict  compliance  with  directory  ordinances  on  the 
subject,  but  the  lot  owner  or  defendant  may  show  a  neglect  of 

1  Bond  v.  Newark,  19  N.  J.  Eq.  376,  1869 ;  Lake  v.  Williamsburg,  4  Denio, 
523;  St.  Louis  v.  Clemens,  36  Mo.  467.  As  to  liability  of  the  municipal  cor- 
poration to  the  contractor,  see  chapter  on  Contracts,  ante,  p.  390,  Sec.  400. 

*  Lowell  v.  Wentworth,  6  Cush.  221,  involving  validity  of  notice  of  assess- 
ment ;  Same  v.  French,  ib.  223.  Construction  of  charter  as  to  "temporary  "  or 
"permanent"  sidewalks,  and  as  to  what  constitutes  an  "acceptance"  thereof 
by  the  city:  Lowell  v.  Wheelock,  11  Cush.  391, 1852.  If  the  charter  pro- 
vides that  sidewalks  may  be  constructed  by  the  city  "  at  the  expense  of  the 
lot  owner,"  and  points  out  no  specific  remedy,  a  .civil  action  lies  to  recover 
the  amount:  Lowell  v.  Wyman,  12  Cush.  273-276,  1853.  "The  power  of 
charging  the  expense  of  sidewalks  on  the  owners  of  the  adjoining  land,  is 
a  high  power,  and  is  not  to  be  extended  by  construction :  Per  Metcalf,  J., 
in  Lowel  v.  French,  6  Cush.  223,  224. 

3  Lowell  v.  Wheelock,  11  Cush.  391,  1853. 

'  *  Ib.    The  order  should  appear  on  the  journal  of  their  official  proceed- 
ings: Ib.    Ante,  p.  108,  Sec.  60;  p.  588,  Sec.  618. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  611 

duty  by  the  authorities,  and  if  he  was  injured  thereby  it  will 
constitute  a  defence.  If  the  work  has  been  done  in  a  manner 
satisfactory  to  the  corporation,  and  has  been  accepted  by  it,  a 
prima  facie  case  is  made  out.1 

§  651.  The  legislature  may  provide  summary  collection  of 
taxes  and  assessments,  and  declare  what  shall  make  a  prima 
facie  case.2  For  the  payment  of  street  improvements,  it  was 
provided  by  statute  that  the  city  engineer  should  make  an  esti- 
mate, which,  when  the  council  directed  it  to  be  paid,  became 
an  assessment  upon  the  particular  lot  or  property  to  which 
it  was  chargeable.  It  was  further  provided  that  if  it  should 
appear  to  the  council  by  affidavit  that  such  assessment  was  not 
paid,  the  council  should  provide  for  its  collection  by  precept 
issued  by  the  mayor  and  clerk.  It  was  contended  that  this 
statute  was  unconstitutional,  because  it  deprived  a  party  of 
rights  without  a  judicial  hearing,  and  because  it  invested  the 
council  with  judicial  power.  But  the  court  held  that  inasmuch 
as  the  party  had  the  right  by  appeal  to  transfer  his  cause  to  a 
judicial  tribunal,  the  objection  to  the  statute  was  not  well 
taken,  and  that  the  issue  of  the  precept  was  a  ministerial,  and 
not  a  judicial,  act,3 

§  652.  The  original  assessment  for  a  local  improvement 
proving  insufficient,  the  legislature  may  constitutionally  authorize 
a  re-assessment  and  make  it  operate  upon  the  property  benefited, 
that  is,  upon  all  that  was  originally  liable  to  contribute  ;  and 
such  a  law  is  valid,  even  against  the  party  purchasing  interme- 
diate the  assessment  and  re -assessment.  Vested  rights  are  not 
thereby  impaired.4 

1  Bisley  v.  St.  Louis,  34  Mo.  404, 1864 ;  St.  Joseph  v.  Anthony,  30  Mo. 
537, 1860;  St.  Louis  v.  De  Noue,  44  Mo.  136;  St.  Louis  v.  Clemens,  36  Mo. 
467.  In  an  action  to  recover  local  assessments,  in  the  absence  of  proof  of 
fraud,  the  acceptance  by  the  corporation  of  work  it  was  authorized  to  contract 
for,  is  prima  facie  evidence  against  the  defendant,  so  far  as  relates  to  its 
completion,  and  the  manner  in  which  it  was  done :  Municipality  v.  Guil- 
lotte,  14  La.  An.  297, 1859.    Ante,  Sees.  386,  387. 

2  St.  Louis  v.  Coons,  37  Mo.  44, 1865. 

'  Flournoy  v.  Jeffersonvile,  17  Ind.  169, 1861 ;  ib.  175.    Ante,  Sec.  387. 
4  Butler  v.  Toledo,  5  Ohio  St.  225, 1855  ;    Schenley  v.  Commonwealth,  36 
Pa.  St.  29, 1859 ;  Meuser  v.  Risdon,  36  Cal.  239.    Ante,  p.  92,  Sees.  45, 46,  and 


612  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

§  653.  Mode  of  Collection— If  the  charter  gives  to  a  munici- 
pal corporation  a  specific  and  complete  remedy  for  the  collec- 
tion of  taxes,  as  by  a  distress  and  sale  of  property,  this  will 
ordinarily  be  regarded  as  excluding  by  implication  the  right 
to  resort  to  any  other  mode  of  enforcing  the  tax;  but  where 
the  power  to  levy  the  tax  is  plainly  given,  the  right  to  collect 
by  suit  should  not  be  taken  to  be  impliedly  denied,  unless  the 
intention  of  the  legislature,  that  the  special  mode  prescribed 
should  be  the  only  mode,  appears  with  reasonable  certainty. 
If  the  specific  remedy  is  full  and  adequate,  such  an  intention 
on  the  part  of  the  law-maker  would  be  more  readily  deduced 
than  it  would  under  other  circumstances.1 

notes.  Power  of  legislature  to  change  mode  of  assessments  as  to  uncom- 
pleted local  improvements :  Hines  v.  Leavenworth,  3  Kansas,  186,  1865. 
It  is  essential  to  the  validity  of  a  re-assessment  for  a  local  improvement 
that  all  the  money  to  be  collected  under  it  shall  have  been  substantially 
expended  in  the  authorized  improvement :  Butler  v.  Toledo,  5  Ohio  St. 
225,  1855.  Void  assessment  does  not  preclude  a  subsequent  valid  one: 
Himmelman  v.  Cofran,  36  Cal.  411,  1868.  Further,  as  to  new  or  re-assess- 
ment :  Chicago  v.  Ward,  36  111.  9  ;  Gurner  v.  Chicago,  40  111.  165 ;  Beygeh 
v.  Chicago,  Supreme  Court  Illinois,  September,  1871,  4  Chicago  Legal  News, 
121,  not  yet  officially  reported.  Power  of  city  authorities  to  validate  pro- 
ceedings invalid  in  the  first  instance,  denied :  Meuser  v.  Bisdon,  36  Cal. 
239 ;  Municipality  v.  Botts,  8  Bob.  (La.)  198. 

1  Camden  v.  Allen,  2  Dutch.  (N.  J.)  398,  1857,  citing  Pierce  v.  Boston,  3 
Met.  520,  distinguishing  Ohio  v.  Hibbard,  3  Ohio,  63,  Ohio  v.  Gazley,  5  Ohio, 
14 ;  and  holding  that  a  tax  is  not  a  debt  or  in  the  nature  of  a  debt,  nor  lia- 
ble to  set-off:  2  Dutch.  398,  per  Green,  C.  J.  S.  P.  Denying  that  taxes  are 
debts,  for  which,  without  a  statute  authority,  actions  may  be  maintained, 
see  Pierce  v.  Boston,,  supra;  Shaw  v.  Pickett,  26  Vt.  486,  cited  with  approval 
by  Chase,  C.  J.,  in  Lane  County  v.  Oregon,  7  Wall.  71,  80, 1868,  arguendo. 

Further,  as  to  personal  liability :  Oakland  v.  Whipple,  39  Cal.  112 ;  People 
v.  Seymour,  16  ib.  332;  Guerrin  v.  Reese,  33  ib.  292;  Litchfield  v.  Vernon,  41 
N.  Y.  123, 1869;  St.  Louis  v.  Clemens,  36  Bio.  467 ;  St.  Louis  v.  Be  Noue,  44 
Mo.  136.  Li  the  case  of  Taylor  v.  Palmer,  31  Cal.  240,  1866,  the  majority  of 
the  court  held  against  a  learned  and  strong  dissent,  that  it  was  not  within 
the  power  of  the  legislature,  under  the  constitution,  to  make  an  assessment 
for  street  improvements,  a  personal  charge  against  the  owner  for  whatever 
sum  may  remain  after  a  lien  on  the  lot  has  been  enforced.  In  the  learned 
and  strong  dissenting  opinion  of  Sawyer,  J.  ib.  666,  the  legislative  practice 
and  the  decisions  in  other  states  are  extensively  referred  to,  and  the 
authority  of  the  legislature  to  make  an  assessment  a  personal  charge, 
earnestly  and  ably  maintained.    Supra,  Sec.  642,  el  seq. 

On  the  principle  that  where  a  statute  creates  a  liability  which  did  not 
before  exist,  and  gives  a  special  remedy  to  enforce  it,  that  remedy,  and  not 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  613 

§  654.  On  the  principle  that  the  specific  statute  mode  of 
collection  must  be  pursued,  it  was  held,  in  another  case,  where 
the  legislature  had  provided  that  a  tax  upon  free  persons  of 
color  removing  to  a  city  should  be  collected  by  hiring  them 
out,  that  an  ordinance  authorizing  such  persons  to  be  impris- 
oned for  the  non-payment  of  the  tax  was  void.1  So  where  the 
organic  law  of  a  town  gave  it  power  "to  levy  and  collect 
taxes,"  and  also  provided,  in  another  section,  that  "if  any  per- 
son fail  to  pay  any  tax  levied  on  his  property,  the  town  col- 
lector may  recover  the  same  by  civil  action  in  the  name  of  the 
corporation,"  it  was  held  that  the  payment  of  taxes  must  be 
enforced  by  suit  and  that  it  was  not  competent  for  the  corpora- 
tion to  pass  an  ordinance  providing  for  their  collection  by 
seizure  and  sale,  before  judgment,  since  the  mode  of  collection 
specified  in  the  statute  excluded  all  other  modes.3 

§  655.  The  authorities,  however,  are  not  uniform,  and  in 
some  of  the  states  the  view  is  taken  that  a  tax  legally  levied 
and  assessed  by  a  municipal  corporation  pursuant  to  its  char- 
ter creates  a  legal  obligation  to  pay  such  tax,  and  that  the  city 
can  recover  it  in  an  action  of  assumpsit,  and  this  although  there 
may  be  a  summary  mode  of  recovery  provided  for  in  the  ordi- 
nance.3 

a  common  law  action,  must  be  pursued,  street  assessments  must  be  col- 
lected in  the  manner  provided  by  the  charter  or  constituent  act  of  the  cor- 
poration: Flournoy  v.  Jeffersonville,  17  Ind.  169,  1861;  ib.  318.  Precept 
must  be  duly  signed  by  the  proper  officer:  Jeffersonville  v.  Patterson,  32 
Ind.  140.  It  was  held  by  a  divided  court  (ten  senators  to  eight)  that  a 
county  could  not  maintain  a  bill  in  equity  in  the  nature  of  a  creditor's  bill, 
to  enforce  the  payment  of  county  taxes,  where  the  warrant  for  the  taxes 
was  returned  no  property  whereon  to  levy:  Court  of  Errors,  Durant  v. 
Supervisors,  26  Wend.  66,  1841,  reversing  decree  of  chancellor  and  vice 
chancellor.    Post,  Sees.  727-738;  infra,  Sec.  660. 

1  Cooper  v.  Savannah,  4  Geo.  68, 1848. 

*  Alexander  v.  Helber,  35  Mo.  334, 1864.    Ante,  Sec.  273. 

3  Dugan  v.  Baltimore,  1  Gil)  &  J.  (Md.)  499;  Mayor,  &c.  v.  Howard,  6  Har. 
&  J.  (Md.)  383;  Gordon  v.  Baltimore,  5  Gill  (Md.),  236,  243;  Eschbach  v. 
Pitts,  6  Md.  71,  1854.  In  Dugan  v  Baltimore,  supra,  Buchanan,  C.  J.,  deliv- 
ering the  opinion  of  the  court,  said :  "  In  the  Mayor,  &c.  v.  Howard,  6  Har. 
&  J.  383,  it  was  decided  by  this  court,  in  relation  to  the  10th  section  of  the 
act  of  incorporation,  .that  the  giving  a  remedy  by  distress  or  action  of  debt 
was  cumulative  only,  and  did  not  take  away  the  action  arising  by  implica- 


614  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

§  656.  If  the  charter  gives  the  power  to  impose  taxes,  but 
is  silent  respecting  the  method  for  their  recovery,  the  corporation 
may  enforce  them,  or  provide  by  ordinance  for  their  enforce- 
ment by  due  course  of  judicial  proceedings.  In  such  a  case, 
the  authority  to  collect  by  suit  is  clearly  implied,  being  neces- 
sary in  order  to  make  the  power  to  tax  available.  But  the 
power  to  levy  and  collect  a  tax,  whether  general  or  special, 
does  not  carry  with  it  the  authority  to  collect  by  distress  or 
sale  of  property,  or  in  any  way  more  summary  than  by  resort 
to  legal  proceedings.  The  principle  of  the  common  law  is 
clear,  as  we  have  already  seen,1  that  municipal  corporations 
cannot  make  a  by-law  (unless  the  power  be  plainly  and  directly 
conferred)  to  enforce  the  payment  of  fines  by  distress,  sale,  or 
forfeiture  of  the  goods  of  the  party  who  may  have  omitted  to 
discharge  his  legal  dues,  and  the  same  doctrine  extends  to 
taxes,  when  they  are  treated  as  debts.  Municipal  power  to 
collect  by  distress  and  sale  cannot  be  implied  because  the  state 
collects  its  taxes  in  this  manner.  It  must  be  given,  if  not  in 
express  terms,  yet  by  the  clearest  and  most  indubitable  impli- 
cation.2   Therefore,  the  power  to  sell  for  the  non-payment  of 

tion,  or  the  legal  obligations  to  pay  a  claim  created  by  law.  The  tax  for 
which  this  suit  is  brought  was  imposed  by  virtue  of  that  act,  the  imposi- 
tion and  assessment  of  which  created  the  legal  obligation  to  pay,  on  which 
the  law  raised  an  assumpsit,  independent  of  the  notice  required  by  the  5th 
section  of  the  ordinance,  as  a  foundation  for  a  summary  mode  of  recovery, 
and  unaffected  by  the  omission  of  the  collector  to  do  his  duty,  which  omis- 
sion, though  it  caused  the  loss  of  the  right  to  collect  the  tax  by  distress  and 
sale  of  the  goods,  left  the  right  to  recover  on  the  original  implied  assumpsit 
unimpaired — an  assumpsit  raised  by  the  law  on  the  imposition  and  assess- 
ment of  the  tax,  and  not  to  arise  on  the  delivery  by  the  collector  of  an  ac- 
count of  the  assessment  and  tax."  S.  P.  State  v.  Southern  Steamship  Com- 
pany, 13  La.  An.  497, 1858;  Dunlap  v.  County,  15  111.  9;  Ryan  v.  County,  14 
111.  83;  Mayor  v.  McKee,  2  Yerg.  (Tenn.)  167. 

Mode  of  collection:  Bondr.  Hiestand,  20  La.  An.  139;  Louisville  v.  Bank, 
3  Met.  (Ky.)  148 ;  New  Orleans  v.  Graihle,  9  La.  An.  561 ;  Baltimore  v.  Chase, 
2  Gill  &  J.  (Md.)  376.    Supra,  Sees.  649,  note,  654,  note. 

1  Ante,  chapter  on  Ordinances,  Sees.  270-287;  341-355. 

1  Bergen  v.  Clarkson,  1  Halst.-  (N.  J.)  352,  1796;  Merriam  v.  Moody,  25 
Iowa,  163,  1868;  Mayor  v.  Howard,  6  Har.  &  J.  383;  Dugan  v.  Mayor,  1  Gill 
&  J.  499;  Ham  v.  Miller,  20  Iowa,  450;  Camden  v.  Allen,  2  Dutch.  (N.  J.) 
398, 1857;  Clerk  v.  Tucker,  2  Vent.  132;  New  Orleans  v.  Graihle,  9  La.  An. 
561;  Baltimore  v.  Chase,  2  Gill  &  J.  (Md.)  376;  St.  Louis  v.  Russell,  9  Mo. 
503.  1845;  St.  Louis  v.  Allen,  13  Mo.  400,  1850;  Mclnerny  v.  Reed,  23  Iowa, 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  615 

taxes,  general  or  special,  cannot  be  inferred  from  an  express 
provision  in  the  charter  to  the  effect  that  the  collection  of  the 
taxes  provided  for  therein  shall  he  enforced  in  such  manner  as 
may  be  provided  by  the  ordinances  of  the  city.1 

§  657.  "While  the  power  "to  levy  and  collect  taxes  "  will 
not  alone  confer  the  right  upon  the  municipality  to  collect  by 
a  direct  sale,  yet  these  words  may  give  such  authority  in  con- 
nection with  other  charter  provisions  on  the  same  subject 
which  unequivocally  and  plainly  assume  and  recognize  the 
existence  of  a  power  of  sale.2 

§  658.  The  principle  is  a  familiar  one,  that  the  power  to 
sell  when  given  must  be  strictly  pursued  or  the  sales  are  void; 
and  a  party  claiming  title  under  a  corporation  tax  sale,  must, 
unless  the  rule  is  varied  by  legislative  enactment,  show  that 
every  prerequisite  to  the  exercise  of  the  power  has  been  com- 
plied with.3 

410,  1867;  Haskell  v.  Burlington,  30  Iowa,  232,  1870;  Paine  v.  Spratley,  5 
Kansas,  525.  The  right  to  impose  a  fine  or  penalty  for  the  non-payment  of 
a  tax  must  be  plainly  conferred,  or  it  cannot  be  exercised  by  the  corpora- 
tion :  Municipality  v.  Pauce,  6  La.  An.  515, 1851. 

1  Merriam  v.  Moody,  25  Iowa,  163;  Paine  v.  Spratley,  5  Kansas,  525;  Mc- 
Inerney  v.  Reed,  23  Iowa,  410. 

2  St.  Louis  v.  Russell,  9  Mo.  503, 1845;  St.  Louis  v.  Allen,  13  Mo.  400, 1850. 
In  these  cases  it  appeared  that  in  the  charter  of  St.  Louis  power  was  given 
"  to  levy  and  collect  taxes,"  &c,  and  in  another  portion  of  the  charter  it 
was  provided  "  that  the  mayor  and  city  council  shall  have  power,  by  ordi- 
nance, to  direct  the  manner  in  which  property  advertised  for  sale,  or  sold 
for  taxes,  by  authority  of  the  corporation,  may  be  redeemed,"  and  it  was 
held  that  the  city  might  sell  property  for  the  non-payment  of  taxes.  Com- 
pare, Merriam  v.  Moody,  supra. 

3  Pope  v.  Headen,  5  Ala.  433,  1843;  Underhill  v.  Smith  (publication), 
Chip.  (Vt.)  81, 1791 ;  Bucknall  v.  Story  (corporation  tax  deeds  as  evidence 
of  title),  36  Cal.  67;  Holroyd  v.  Pumphrey,  18  How.  (IT.  S.)  69;  Holbrook  v. 
Dickinson,  46  111.  285.  Effect  of  municipal  tax  deed  being  made  prima  facie 
evidence  of  title :  lb.  Black  well  on  Tax  Titles,  Chap.  XXXI.  Compliance 
with  law  must  appear  on  the  face  of  the  proceedings :  Chicago  v.  Wright, 
32  111.  192;  Sharp  v.  Spier,  4  Hill  (N.  Y.),  76,  adjudging  that  a  power  to  sell 
for  taxes  did  not  authorize  a  sale  for  a  mere  assessment  for  benefit;  S.  P.  Sharp 
v.  Johnson,  4  Hill,  92.  In  Doe  v.  Chunn,  1  Blackf.  (Ind.)  336,  1825,  it  was 
held  that  express  power  to  a  municipal  corporation  to  levy  taxes  and  sell 
lands  for  the  non-payment  of  them  (the  charter  being  silent  as  to  convey- 
ance to  the  purchaser),  did  not  include  the  power  to  convey ;  but  this  view 


616  MUNICIPAL   CORPORATIONS.  [CH.  XIX. 

§  659.  It  is  undoubtedly  a  sound  proposition,  that  taxes, 
whether  general  or  special,  are  not  liens  upon  the  property 
against  which  they  are  assessed,  unless  made  so  by  the  char- 
ter, or  unless  the  corporation  is  authorized  by  the  legislature 
to  declare  them  to  be  liens.1 

§  660.  Where  the  charter  of  a  city  conferred  upon  it  the 
power  "  to  levy  and  collect "  a  special  tax  for  local  improve- 
ments, and  declared  such  tax  to  be  "a  lien"  upon  the  real  es- 
tate upon  which  it  should  be  assessed,  and  no  mode  of  collec- 
tion was  prescribed,  and  no  power  to  collect  by  sale  existed, 
the  court  was  of  opinion  that  the  lien  might  be  enforced  in 
equity,  and  the  power  "to  collect"  be  exercised  by  the  corpo- 
ration by  a  suit  in  its  name,  but  it  was  held  that  suit  could  not 
be  maintained  in  the  name  of  an  assignee  of  the  corporation.2 

may,  perhaps,  be  considered  too  strict  to  be  sound.    At  all  events,  this 
would  not  be  law  in  any  but  a  tax  title  case. 

"  Without  express  power  given  to  a  municipal  corporation,  by  statute,  to 
become  purchaser  at  an  authorized  sale  of  lands  [by  it]  for  the  non-payment 
of  taxes,  it  possesses  no  such  power,  and  a  sale  to  it  is  void : "  Dixon,  C.  J., 
in  Knox  v.  Peterson,  21  Wis.  247, 1866.  Relief  against  illegal  taxes  and  assess- 
ments: Post,  Chap.  XXII.    Right  to  recover  back:  Post,  Chap.  XXIII. 

1  Philadelphia  v.  Greble,  38  Pa.  St.  339 ;  Howell  v,  Philadelphia,  ib.  471 ; 
Allegheny  City's  Appeal  (lien  of  assessment),  41  Pa.  St.  60.  Authority  to  a 
city  "to  provide,  by  ordinance  or  otherwise,  for  the  prompt  collection  of 
taxes  due  to  the  city,  and  to  that  end  the  city  shall  have  power  to  sell  real 
as  well  as  personal  property,''  authorizes  it  to  pass  an  ordinance  declaring 
taxes  to  be  a  lien  on  realty :  Eschbach  v.  Pitts,  6  Md.  71,  1854,  charter  of 
Baltimore.  See  Dallam  v.  Oliver,  3  Gill  (Md.),  445,  1845.  Though  a.  per- 
sonal action  may  lie  against  the  owner  to  recover  the  amount  of  a  paving 
tax,  yet  this  does  not  affect  the  specific  liability  of  the  property  on  which 
the  tax  is  a  lien  or  which  may  be  sold  to  pay  it :  Eschbach  v.  Pitts,  6  Md. 
71,  1854. 

2  Mclnerney  v.  Reed,  23  Iowa,  410,  1867.  In  Mayor,  &cof  New  York  v. 
Colgate,  12  N.  Y.  (2  Kern.)  140,  1854,  the  lien  of  the  city  was  created  by 
statute,  and  the  cumulative  right  to  enforce  it  as  a  mortgage  given,  and  the 
lien,  it  was  held,  was  not  discharged  by  a  defective  sale  in  pais.  See,  also, 
Norwich  v.  Hubbard,  22  Conn.  587,  1853.    Supra,  Sees.  637,  note,  653. 

A  contractor,  who,  as  the  agent  of  the  city,  and  by  its  authority,  does 
paving  under  a  contract  with  lot  owners,  will  be  subrogated  to  the  rights 
of  the  city  as  to  liens  on  the  adjoining  property,  and  may  prosecute  a  suit 
in  the  name  of  the  city  for  his  use  against  the  delinquent  property :  Phila- 
delphia v.  Wistar,  35  Pa.  St.  427,  1860.  But  in  Griffing  v.  Pintard,  25  Miss. 
173,  it  was  held  that  the  doctrine  of  subrogation  had  no  application  to  the 
rights  and  remedies  of  the  state  or  city  against  delinquent  tax  payers. 


CH.  XIX.]      MUNICIPAL  TAXATION  AND  LOCAL  ASSESSMENTS.  617 

.The  right  of  the  owner  to  redeem  from  sales  for  municipal 
taxes  and  assessments,  as  well  as  from  sales  under  the  general 
tax  laws,  is  favorably  regarded  by  the  courts;  and  statutes 
giving  or  extending  this  right  are  liberally  construed.  And  it 
is  held  by  the  Supreme  Court  of  Pennsylvania,  that  the  right 
to  redeem  is,  until  the  sale  is  fully  consummated  by  deeds, 
wholly  within  legislative  control,  and  that  the  redemption 
time  may  be  enlarged  after  the  sale  is  made  and  before  the 
purchaser  has  obtained  his  deed.1 

Suits  for  local  assessments  may  be  brought  in  the  name  of  the  corpora- 
tion, although  the  charter  directs  that  the  board  of  trustees  shall  do  the 
work  and  recover ;  the  trustees  are  but  the  agents  of  the  corporation :  Pal- 
myra v.  Morton,  25  Mo.  593, 1857 ;  North  Liberty  v.  St.  John's  Church,  13 
Pa.  St.  104. 

As  to  mode  of  collecting  assessments  for  local  improvements,  and  when 
considered  a  personal  charge  as  well  as  a  lien  on  the  property  benefited, 
see  Bennett  v.  Buffalo,  17  N.  Y.  383;  Mayor,  &c.  ■».  Colgate,  12  N.  Y.  (2 
Kern.)  140  (assessment  for  widening  street);  Salter  v.  Beed,  15  Pa.  St.  260; 
Philadelphia  v.  Cooke,  30  ib.  56,  63;  Guerrin  v.  Eeese,  33  Cal.  292;  Des 
Moines  v.  Casady,  21  Iowa,  570;  Gaffney  v.  Gough,  36  Cal.  104;  Britton  v. 
Philadelphia,  32  Pa.  St.  387. 

1  Gault's  Appeal,  34  Pa.  St.  95, 1859.    See  Adams  v.  Beale,  19  Iowa,  61. 


78 


618  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

CHAPTER    XX. 

Mandamus. 

§  661.  This  important  subject,  so  far  as  it  falls  within  the 
scope  of  the  present  work,  will  be  considered  in  the  following 
order : — 

1.  Definition  and  General  Nature  of  the  Remedy — Sees. 
662-664. 

2.  When  the  Writ  will  be  Granted  or  Refused — Sees. 
665-668. 

3.  Mandatory  and  Discretionary  Powers  as  Respects  the 
Remedy  by  Mandamus — Sees.  669-673. 

4.  Mandamus  as  Respects  Municipal  Elections  and  Offi- 
cers— Sec.  674,  et  seq. ;  To  Take  Office— Sec.  677;  To  Ad- 
mit to  Office— Sees.  678-682;  To  Restore  to  Office— Sec. 
683. 

5.  To  Obtain  Possession  and  Inspection  of  Corporate 
Books  and  Papers — Sec.  684. 

6.  To  Enforce  Duties  Towards  Creditors—Sees.  685-693. 

7.  Application  for  the  Writ — Affidavits — Relator — 
Rule— Sees.  694-697. 

8.  Form,  Direction,  and  Service,  of  the  Writ — Sees.  698 
-704. 

9.  The  Return  and  Subsequent  Proceedings — Sees.  705, 
706. 

10.  Peremptory  Writ— Sees.  707,  708. 

11.  Attachment— Sees.  709-711. 

12.  Judgment— Sec.  712. 

Definition  and  General  Nature  of  the  Remedy. 

§  662.  At  common  law,  the  superintending  jurisdiction  of 
the  King's  Bench  over  all  public  bodies,  including  municipal 
corporations,  and  over  public  officers,  including  the  officers  of 
such  corporations,  was  largely  exercised  by  means  of  the  writ 
of  mandamus,  which  is  considered  in  England  to  be  a  preroga- 


CH.  XX.]  MANDAMUS.— DEFINITION    AND   NATURE.  619 

tive  writ,  and  is  in  style  an  injunction  in  the  king's  name,  com- 
manding the  corporation,  officer,  or  person  to  whom  it  is 
directed  to  perform  the  specific  duty  therein  commanded.  It 
is  in  England,  in  connection  with  an  information  in  the  nature 
of  a  quo  warranto,  the  principal  remedy  hy  which  municipal 
corporations  are  compelled  to  observe  the  requirements  of  their 
charter  and  of  the  law;  and  whenever  the  law  has  not  provided 
some  other  adequate  or  specific  remedy  to  compel  or  secure 
the  performance  of  their  duties,  such  performance  will  he  en- 
forced by  means  of  this  writ  in  favor  of  the  public  or  of  any 
person  having  a  right  to  insist  upon  such  performance,  and 
who  would  be  injured  by  their  non-performance.1  It  is,  in 
substance,  a  civil  remedy  for  the  subject,  though  the  name  of 
the  king  be  nomimilly  used.2 

§  663.  In  this  country  the  functions  of  the  writ  are  fully  as 
extensive  as  in  England,  although  we  have  here  given  more 
scope  to  other  remedies  which  often  effect  practically  the  same 
ends.3  It  is  to  the  public  advantage  that  municipal  corpora- 
tions and  their  officers  shall  be  made  to  perform  the  duties 
enjoined  upon  them  by  law,  and  the  necessity  which  has  been 
felt  for  affording  easy  remedies  against  them  has  led  the  legis- 
latures and  the  courts  in  modern  times  to  improve  and  liberal- 
ize the  proceedings  by  mandamus,  by  relieving  them  of  much 

1  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496, 510,  1859;  3  Black.  Com.  110 ; 
Rex  v.  Barker,  3  Burr.  1267;  1  W.  Black.  352;  Bex  v.  Commissioners,  1 
Term.  Rep.  148;  People  v.  Collins,  19  Wend.  65;  Selwyn's  Nisi  Prius,  Chap. 
XXVIII,  1077-1100.  "A  mandamus  is  certainly  a  prerogative  writ,  flowing 
from  the  king  himself,  sitting  in  this  court,  superintending  the  police  and 
preserving  the  peace  of  this  country:'7    Rex  v.  Barker,  supra,  per  Lord 


2  Stephens'  Nisi  Prius,  2291.  This  author's  treatment  of  the  subject  of 
Mandamus,  as  the  remedy  is  applied  in  England,  is  highly  satisfactory. 

'  See,  post,  Chaps.  XXII.  XXIII.  "  Mandamus,"  says  Mr.  Justice  Thomp- 
son, in  commencing  his  valuable  opinion  in  the  Commonwealth  v.  Alle- 
gheny County,  37  Pa.  St.  277,  279,  1860,  "  is  a  high  prerogative  and  reme- 
dial writ,  the  appropriate  functions  of  which  are  the  enforcement  of  duties 
to  the  public,  by  officers  and  others,  who  either  neglect  or  refuse  to  per- 
form them.  It  follows,  therefore,  that  those  to  whom  it  may  be  appropri- 
ately directed  owe  some  duty  to  the  public,  and  are  under  obligation  to 
perform  it,  and  for  the  enforcement  of  which  there  is  no  other  specific 
legal  remedy." 


620  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

of  their  former  artificial  and  technical  character.1  Accord- 
ingly, "it  is,"  says  a  high  legal  authority,  "well  settled  that  a 
mandamus  in  modern  practice  is  nothing  more  than  an  action 
at  law  between  the  parties,  and  is  not  now  considered  as  a  pre- 
rogative writ.  The  right  to  the  writ,  and  the  power  to  issue 
it,  have  ceased  to  depend  on  any  prerogative  power,  and  it  is 
now  regarded  as  an  ordinary  process  in  cases  to  which  it  is 
applicable.  It  is  a  writ  to  which  every  one  is  entitled,  where 
it  is  the  appropriate  process  for  asserting  the  right  he  claims."2 

§  664.  Mandamus  and  injunction  are,  in  their  nature,  differ- 
ent remedies,  and  in  general  are  not  concurrent  or  inter- 
changeable.3 '  A  writ  of  mandamus  may  be  styled  an  injunction 
at  law  or  a  mandatory  writ  in  a  legal  proceeding,  commanding 
in  the  name  of  the  sovereign  authority  the  performance  of  a 
specific  affirmative  act.  An  injunction  belongs  to  a  court  of 
equity,  and  usually  issues  to  prevent  the  doing  of  some  specific 
act.  Where  mandamus  is  the  appropriate  remedy,  it  cannot  be 
substituted  by  a  bill  in  equity  praying  an  injunction — as,  for 
example,  to  compel  a  municipality  to  levy  a  tax  to  pay  a  judg- 
ment against  it.' 

1  Rex  v.  Barker,  3  Burr.  1265;  Sikes  v.  Ransom,  6  Johns.  279;  Ex  parte 
Turner,  5  Ohio,  542.  , 

2  Per  Taney,  C.  J.,  in  Commonwealth  of  Kentucky  v.  Dennison,  Governor, 
Ac.  24  How.  (IT.  S.)  66,  97,  98,  1860;  Kendall  v.  United  States,  12  Pet.  615; 
Kendall  v.  Stokes,  3  How.  100;  Ex  parte  Fleming,  4  Hill  (N.  Y.),  581;  State 
v.  Bailey,  7  Iowa,  390;  Bryan  v.  Cattell,  15  Iowa,  338,  per  Wright,  J.;  Com- 
monwealth v.  Allegheny  County,  32  Pa.  St.  218,  1858;  State  v.  Kirkley,  29 
Md.  85,  1868;  Wilkinson  v.  Bank,  3  Rh.  Is.  22. 

3  Walkley  v.  Muscatine,  6  Wall.  481, 1867.  Thus  mandamus,  and  not  a 
bill  in  equity,  is  the  proper  remedy  against  the  officers  of  a  corporation  to 
compel  them  to  register  a  conveyance  of  shares:  Cooper  v.  Dismal  Swamp 
Canal  Company,  2  Murphy  (North  Car.),  195.  Remedy  in  equity;  Post, 
Chap.  XXII.  So  an  injunction,  and  not  mandamus,  was  considered  to  be 
the  proper  remedy  to  prevent  the  erecting,  by  the  trustees,  of  a  school 
house  on  a  site  selected  in  violation  of  law ;  but  mandamus  was  regarded  as 
the  proper  remedy  to  compel  the  trustees  to  carry  out  the  decision  of  the 
superior  school  officer,  on  appeal,  in  relation  to  establishing  a  school  house 
for  the  district :   State  v.  Custer,  11  Ind.  210,  1858. 

4  Walkley  v.  Muscatine,  6  Wall.  481,  1867.  See  State  v.  Kirkley,  29  Md. 
85, 110, 1868,  in  which  it  was  held  that  mandamus  was  a  proper  remedy  by 
a  city  to  compel  the  delivery  to  it,  by  a  building  committee  who  were  act- 

ng  without  legal  authority,  of  the  plans  and  specifications  of  the  city  hall, 


CH.  XX.]  MANDAMUS. —  GRANTED    OR   REFUSED.  621 

When  Granted  or  Refused. 

§  665.  A  writ  of  mandamus  will  be  granted  against  municipal 
corporations  and  their  officers  whenever  they  refuse  or  unrea- 
sonably neglect  to  perform  any  duty  clearly  enjoined  upon 
them  by  charter  or  statute  or  law,  and  there  is  no  other  spe- 
cific legal  remedy  adequate  to  enforce  the  right  of  the  public, 
or  the  specific  legal  right  of  the  relator.1  "  "Whenever,"  says 
Mr.  Justice  Strong,  now  holding  a  seat  on  the  Supreme  Bench 
of  the  United  States,  adopting  the  doctrine  of  the  English  law, 
"there  is  a  clear  legal  right  in  the  relator,  a  corresponding 
duty  in  the  defendants,  and  the  want  of  any  other  adequate  and 
specific  remedy,"  a  writ  of  mandamus  is  the  appropriate  pro- 
cess.2 

§  666.  If  the  statute  prescribe  a  specific  remedy,  particularly 
if  adequate  in  its  nature,  such  a  remedy  is  ordinarily,  if  not 
always,  exclusive  of  mandamus,  which  will  not  in  such  case  be 
granted;  but  if  no  particular  remedy  be  given,  and  there  is  no 
other  plain  and  effectual  mode  of  relief,  mandamus  is  proper  in 
all  cases  where  it  is  adapted  to  enforce  the  right  and  duty  in 
question.3  And  it  has  repeatedly  been  held,  both  in  England 
and  in  this  country,  that  where  there  is  a  clear  legal  right  in 
the  relator,  the  writ  will  not  be  refused  merely  because  there 

and  thus  to  restrain  them  in  the  discharge  of  the  duties  of  their  supposed 
office. 

As  to  mandamus  and  injunction:  Prescott  v.  Duquesne  (duty  in  respect  to 
wharf),  48  Pa.  St.  118;  School  Directors  v.  Anderson,  45  Pa.  St.  388;  State 
v.  Graves,  19  Md.  351 ;  Neuse  Eiver  Company  v.  Commissioners,  6  Jones 
(North  Car.),  Law,  204;  State  v.  Custer,  11  Ind.  210;  People  v.  Salomon,  46 
111.  415;  Same  v.  Same,  51  ib.  39.  Infra,  Sec.  666.  Post,  Chap.  XXII.  as  to 
legal  and  equitable  remedies. 

1  Hall  v.  Selectmen,  39  N.  H.  511,  and  cases  cited  by  Bellows,  J. ;  Hawkins 
v.  County  Commissioners,  14  Ind.  521;  Strong's  Case,  Kirby  (Conn.),  345; 
Treat  v.  Middleton,  8  Conn.  243;  Commonwealth  v.  Allegheny  County,  32 
Pa.  St.  218,  1858;  State  v.  Kirkley,  29  Md.  85,  1868  ;  Angell  &  Ames,  Sees. 
709-712,  and  cases  cited;  St.  Luke's  Church  v.  Slack,  7  Cush.  226;  People 
v.  Supervisors,  &c.  10  Wend.  363 ;  People  v.  Supervisors,  &c.  4  Seld.  317 ; 
State  v.  Cincinnati,  19  Ohio,  178 ;  State  v.  Wood  County,  17  Ohio,  184. 

2  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496,509,  1859;  Stephens,'  Nisi 
Prius,  2292. 

3  Ottawa  v.  People,  48  111.  233, 1868. 


622  MUNICIPAL    CORPORATIONS.  [CH.  XX. 

is  a  remedy  in  equity,  or  a  remedy  at  law,  if  not  adequate  to 
its  purpose,  or  because  the  officers  or  adverse  party  may  be 
prosecuted  criminally  for  neglect  of  duty.1 

§  667.  The  well  established  general  rulo  is,  as  above  stated, 
that  the  writ  ot  mandamus  will  only  lie  to  give  effect  to  a  clear 
legal  right;  but  if  there  be  a  reasonable  or  fair  doubt  respecting 
the  right  of  the  public  or  of  the  relator  to  this  form  of  reme- 
dy, the  writ  will  be  granted;  and  the  question  of  the  right  con- 
sidered on  the  return.2  And  however  clear  the  legal  right  of 
the  relator  or  applicant  for  the  writ  may  be,  the  writ  cannot 
be  sustained  if  there  is  a  clear,  ample,  and  adequate  remedy 
by  an  ordinary  action  at  law.3  But  since  the  proceeding  by 
mandamus  has  been  assimilated  to  ordinary  proceedings,  the 
relator,  if  otherwise  entitled,' should  not  be  denied  a  resort  to 
this  remedy  on  the  ground  that  he  can  sue  at  law,  unless  it 
appears  that  this  latter  remedy  is  just  as  adequate  and  effectual 
as  the  other. 

1  Willcock,  356,  pi.  40-44,  and  cases  cited;  Peoples.  Mayor,  10  Wend. 
393,  1833;  Commonwealth  v.  Allegheny  County,  32  Pa.  St.  218,  1858; 
Stephens'  Nisi  Prius,  2306;  Bex  v.  Railway  Company,  2  B.  &  A.  646;  Ex 
parte  Robins,  7  Dowl.  566.     Post,  Chap.  XXII. 

It  has  been  sometimes  said,  but  perhaps  without  sufficient  reflection, 
that  a  remedy  by  injunction,  if  ample,  will  prevent  a  resort  to,  or  induce  the 
court  in  its  discretion  to  deny,  a  mandamus :  State  v.  Custer,  11  Ind.  210, 
212,  per  Hanna,  J. ;  People  v.  Salomon,  46  111.  415.  But  if  the  suit  in  chan- 
cery is  not  of  a  nature  to  do  such  complete  justice  as  a  proceeding  by  man- 
damus, the  pendency  of  such  a  suit  in  equity  will  not  prevent  the  court 
from  awarding  a  mandamus :  People  v.  Salomon,  51  111.  39,  1869 ;  Calaveras 
County  v.  Brockway,  30  Cal.  325.    Supra,  Sec.  664. 

A  statute  provided  that  a  creditor  of  a  county  should  be  entitled  to  the 
amount  due  him  "in  the  county  levy,  or  to  a  recovery  thereof,  with  costs, 
by  action  of  debt  against  the  officer  refusing  to  levy  the  same ; "  and  it  was 
held  by  the  Court  of  Appeals  of  Virginia,  that  this  right  to  an  action 
against  the  officers  was  such  a  specific  legal  remedy  as  to  deprive  the  cred- 
itor of  the  right  to  a  mandamus  to  compel  the  levy  of  the  tafx :  Justices  v. 
Munday,  2  Leigh  (Va.),  165,  1830;  but  quaere?  See  Amy  v.  Supervisors,  11 
Wall.  136, 1870,  referred  to  infra,  Sec.  691. 

3  Willc.  356,  pi.  41 ;  People  v.  Stevens,  5  Hill  (N.  Y.),  616;  State  v.  Warren, 
&c.  Company,  3Vroom  (N.  J.),  439;  Reginau.  Heathcote,  10  Mod.  49;  People 
v.  Ransom,  2  Comst.  (N.  Y.)  490. 

"  People  v.  Supervisors,  11  N.  Y.  (1  Kern.)  563;  People  v.  Mayor,  10 
Wend.  393.  It  has  been  said  that  the  rule  in  the  text  is  "  not  universally 
true  in  relation  to  corporations  and  ministerial  officers:"  McCullough  v. 


CH.  XX.]  MANDAMUS. — GUIANTED    OR   REFUSED.  623 

§  668.  Thus,  where  the  salary  or  fees  of  an  officer  of  a  muni- 
cipal or  public  corporation  may,  like  other  debts,  be  recovered 
by  an  action  at  law  against  the  corporation,  this  is  the  remedy, 
and  not  mandamus  ; l  but  if  the  officer  cannot  sue  the  corpora- 
tion, he  may,  where  entitled,  compel  payment  by  means  of  this 
writ,2  unless  another  is  in  possession  under  color  of  right,  in 

Mayor  of  Brooklyn,  23  Wend.  459.  And  in  that  case,  where  it  appeared 
the  common  council  had  neglected  its  duty  in  omitting  to  issue  a  warrant 
to  collect  a  tax,  Bronson,  J.,  said,  that  though  an  action  on  the  case  would 
perhaps  lie  in  favor  of  the  plaintiff,  who  would  be  entitled  to  the  money 
when  collected,  yet  a  mandamus  would  be  a  more  appropriate  remedy, 
which,  according  to  the  commentary  of  Nelson,  J.,  is  only  equivalent  to 
saying,  "  if  the  remedy  by  action  be  doubtful,  a  mandamus  will  lie :  "  11  N. 
Y.  (1  Kern.)  p.  573,  574.  See,  also,  People  v.  Supervisors,  &c.  10  Wend. 
363,  366,  where  it  is  said,  "  If  an  action  lies  in  this  case,  then  a  mandamus 
should  be  refused:"  People  v.  Brooklyn,  1  Wend.  318,  325;  Boyce  v.  Bus- 
sell,  2  Cow.  444 ;  People  v.  Mayor  of  New  York,  25  Wend.  680;  People  v. 
Stevens,  5  Hill,  616. 

That  mandamus  will  not  lie  where  there  is  an  adequate  remedy  by  statute  or  by  an 
ordinary  action  at  law :  Commissioners,  &c.  v.  Lynch,  2  McCord  (South  Car.), 
170,1822;  Crandall  v.  Amador,  20  Cal.  72;  Johnson  County  v.  Hicks,  2Ind. 
(Carter)  527,  1851 ;  Township  Trustees  v.  State,  11  Ind.  205,  1858;  Baker  v. 
Johnson,  41  Maine,  15,  1856;  People  v.  Edmunds,  15  Barb.  529;  19  Barb. 
468 ;  State  v.  McCrillus,  4  Kansas,  250 ;  Railroad  Company  v.  State,  25  Ind. 
177 ;  Justices  v.  Munday,  2  Leigh  ( Va.),  165 ;  People  v.  Supervisors,  11  N.  Y. 
563.  So  under  the  English  common  law  procedure,  act  of  1864,  Sec.  68, 
mandamus  will  not  be  sustained  if  there  be  any  other  remedy  equally  ade- 
quate and  effective :  Bush  v.  Beavan,  1  Hurl.  &  Colt.  500. 

Mandamus  will  not  lie  where  a  party  has  an  appeal  or  the  right  to  a  writ 
of  error,  which  will  give  adequate  relief:  Ex  parte  Nelson,  1  Cow.  417 ;  State 
v.  Mitchell,  2  Const.  Rep.  (South  Car.)  703, 1815;  Williams  v.  County  Judge, 
27  Mo.  225;  Rex  e.  Benchers  of  Gray's  Inn,  Douglas,  339.  Post,  Chap.  XXII. 

Where  the  writ  of  certiorari  was  taken  away,  the  court  refused  to  indi- 
rectly interfere  to  bring  the  proceedings  under  review  by  mandamus:  Rex 
ii.  Yorkshire,  &c.  1  A.  &  E.  563.    Post,  Chap.  XXII. 

1  People  v.  Thompson,  25  Barb.  73 ;  Ex  parte,  Lynch,  2  Hill  (N.  Y.),  45, 
1841 ;  People  v.  Mayor,  &c.  of  New  York,  25  Wend.  680;  Boyce  «>Russell,  2 
Cow.  444,  1824.    Ante,  p.  202.     Reynolds  v.  Taylor,  43  Ala.  420,  1869. 

2  Baker  v.  Johnson,  41  Maine,  15,  1856;  People  v.  Edmonds,  15  Barb.  529; 
Commonwealth  v.  Johnson,  2  Binney  (Pa.),  275;  People  v.  Supervisors,  32 
N.  Y.  473.  But  it  will  not  lie  to  control  a  discretion  as  to  the  amount  to  be 
allowed:  People  v.  Supervisors,  1  Hill,  362;  People  v.  Mayor,  &c.  25  Wend. 
680,686;  People  v.  Mayor,  &c.  9  Wend.  508.  Compensation  of  municipal 
officers :  Ante,  p.  202.  In  North  Carolina,  while  it  is  conceded  that  the 
court  "will  not,  ordinarily,  at  least,  interfere  by  mandamus  where  there  is 
another  specific  legal  remedy  "  (State  v.  Jones,  1  Ire.  134),  yet  it  is  doubted 


624  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

which  case  the  title  to  the  office  cannot  ordinarily  be  deter- 
mined on  mandamus,  or  in  any  collateral  proceeding.1  So  in  a 
case  in  which  it  appeared  that  the  state  of  New  York  had  is- 
sued bills  of  credit  to  the  amount  of  £200,000,  which  sum  was 
apportioned  among  the  several  counties  of  the  state  and  paid 
over  to  each  county  to  be  loaned  out  to  its  citizens  on  mort- 
gage security ;  and  where  it  was  provided  by  statute  that  if 
any  deficiency  on  foreclosure  should  exist,  the  supervisors 
should  raise  the  same  as  the  ordinary  county  charges  are  lev- 
ied and  collected,  it  was  decided  that  the  remedy  of  the  state, 
where  the  supervisors  omitted  to  perform  this  duty,  was  by 
mandamus  against  them,  and  not  by  action  against  the  county, 
as  the  county  was  only  liable  in  the  way  pointed  out  by  the 
statute.2 

whether,  when  the  legislature  authorizes  one  set  of  public  officers — as,  for 
example,  a  school  committee — to  make  contracts,  and  directs  that  the  em- 
ployees shall  be  paid  by  another  public  officer,  upon  an  order  from  the 
first,  there  can.be  any  other  specific  legal  remedy  than  that  afforded  by 
mandamus:  Per  Battle,  J.,  in  Taylor  v.  School  Commissioners,  5  Jones  (Law), 
98,  1857. 

1  Winston  v.  Mosely,  35  Mo.  146,  1864;  State  v.  State  Auditor,  34  *.  375; 
followed,  State  v.  Auditor,  36  Mo.  70;  People  v.  Brennan,  45  Barb.  457. 
Infra,  Sec.  680,  et  seq. ;  Post,  Chaps.  XXI.,  XXII. 

2  People  v.  Supervisors,  10  "Wend.  363,  1833;  People  v.  Supervisors,  16 
Johns.  59,  1819. 

The  doctrines  of  the  text,  as  to  mandamus,  may  be  illustrated  by  a  brief  ref- 
erence to  some  of  the  adjudged  cases,  in  which  the  writ  has  been  held  to 
be  the  proper  remedy  to  compel  the  performance  of  a  public  duty.  Thus, 
mandamus  lies  to  compel  public  officers,  on  the  division  of  towns,  to  apportion 
the  money  between  them  pursuant  to  the  directions  of  the  statute :  People 
v.  Marsh,  2  Cow.  485,  1824.  Ante,  p.  78,  Sec.  34 ;  p.  80,  Sec.  36;  p.  81,  Sec. 
37;  p.  88,  Sec.  43;  p.  168,  Sees.  127-129. 

To  pay  for  authorized  public  improvements  within  a  municipality,  the  leg- 
islature may  direct  the  local  officers  to  issue  its  bonds,  and  upon  their  refusal 
to  issue  them,  the  duty  may  be  compelled  by  mandamus :  People  ex  rel. 
McLean  v.  Flagg,  11  Am.  Law  Reg.  80,  decided  by  the  New  York  Court  of 
Appeals.  Ante,  p.  90;  ante,  Chap.  XIX.  People  v.  White,  54  Barb.  622, 
1869. 

Mandamus  will  lie  to  compel  a  city  to  make  an  assessment,  directed  by  an 
act  of  the  legislature,  to  pay  for  buildings  pulled  down  to  open  a  public 
street,  or  to  make  and  collect  street  assessments:  Shoolbred  v.  Charleston, 
2  Bay  (South  Car.),  63,  1796;  Himmelman  v.  Coffran,  36  Cal.  411;  Wilson  v. 
Berksteesser,  45  Mo.  283,  1870;  State  v.  Keokuk,  9  Iowa,  438;  Chapin  v. 
Osborn,  29  Ind.  99;   Rex  v.  Canal  Company,  1  M.  &  S.  32;   Regina  v.  Canal 


CH.  XX.]  MANDAMUS. —  DISCRETIONARY   POWERS.  625 

Mandatory  and  Discretionary  Powers. 

§  669.  Powers  conferred  upon  municipal  corporations  are, 
as  we  have  heretofore  seen,  of  two  general  classes — the  one 

Company,  8  Dowl.  P.  C.  623.  So  the  writ  will  lie  to  a  city  council  to  compel 
prosecution  of  a  local  improvement  commanded  by  statute  to  be  made :  People 
u.  Common  Council  of  Brooklyn,  22  Barb.  404.  So,  also,  to  compel ,  commis- 
sioners of  (lie  poor  to  discharge  duties  imposed  on  them,  if  there  be  no  ade- 
quate remedy  at  law:  Commissioners,  &c.  v.  Lynah,  2  McCord  (South  Car.), 
170,  1822;  State  V.  Mitchell,  2  Const.  (South  Car.)  703;  Rex  v.  Bank  of  Eng- 
land, Douglas,  506.    Post,  Sec.  743. 

As  the  writ  lies  to  enforce  public  rights,  it  will  be  granted  to  compel  the 
mayor  to  perform  his  duty  as  a  presiding  officer  after  default  in  that  respect ; 
Rex  v.  Everett,  Cas.  Temp.  Hardw.  261 ;  Rex  v.  Williams,  2  M.  &  S,  141 ; 
Willc.  357,  pi.  46.  Ante,  pp.  186,  187,  240,  241.  And  to  compel  the  proper 
officer  of  the  city  to  issue  a  license  to  one  entitled  thereto:  East  St.  Louis  v. 
Wider,  46  111.  351.    See  Hall  v.  Supervisors,  20  Cal.  591. 

Mandamus  will  lie  to  compel  county  commissioners  to  make  a  record  of 
their  action  in  a  matter  affecting  individual  rights,  so  that  an  appeal  may  be 
taken  if  desired :  Commissioners  of  Warren  County  v.  State,  15  Ind.  250. 
And  against  an  officer,  to  compel  him  to  record  a  deed  or  paper :  Strong's 
Case,  Kirby  (Conn.),  345;  People  v.  Collins,  7  Johns.  549,  1811;  Ex  parte 
Goodell,  14  Johns.  325,  1817.  And  against  commissioners  of  a  county,  to 
compel  them  to  receive  and  file  a  petition  for  a  change  of  the  boundaries  of 
the  county,  as  required  by  law :  Hawkins  v.  County  Commissioners,  14 
Ind.  521.  So  it  will  lie  to  compel  the  officer  having  custody  of  the  corpo- 
rate seal,  to  affix  it  to  any  document  to  which  it  is  the  duty  of  such  officer 
to  put  it:  Tapping  on  Mandamus,  96 ;  8  Blackst.  Com.  110. 

Where  a  statute  is  mandatory,  enjoining  upon  the  mayor  and  aldermen 
the  performance  of  a  duty,  such  as  to  appoint  commissioners  to  discharge  a 
public  duty  connected  with  the  navigation  of  a  public  stream,  mandamus  will 
lie :  Mayor,  &c.  v.  State,  4  Geo.  26,  1848.  In  Georgia,  a  city  marshal  may 
be  compelled,  by  mandamus,  to  perform  his  official  duty  to  restore  property 
levied  on  for  taxes  to  the  claimant  on  receiving  the  bond  and  security  re- 
quired by  statute :  Mitchell  v.  Hay,  37  Geo.  581, 1868.  A  mandamus  is  the 
proper  remedy  for  the  state  to  compel  an  officer  —  e.  g.  a  county  auditor  — 
to  perform  a  public  duty,  in  which  the  state  is  interested,  e.  g.  to  issue  his  tax 
duplicate  without  adding  an  illegal  per  cent:  Hamilton  v.  State,  3  Ind. 
(Port.)  452,  1852. 

County — Duty  as  respects  paupers :  Where  a  statute  provided  that  when 
any  person>  not  a  pauper,  "shall  fall  sick  and  die , in  any  county  in  this 
state,  not  having  money  to  pay  his  board,  medical  aid,  or  burial  expenses, 
it  shall  be  the  duty  of  the  County  Court  to  make  such  allowances  therefor 
as  shall  seem  just,"  it  was  held  that  this  extended  to  persons  of  this  class 
Within  the  limits  of  an  incorporated  place,  the  corporation  charter  being 
silent  on  the  subject ;  and  that  the  county  could  be  compelled,  by  man- 
damus, to  make  a  proper  allowance  when  such  expenses  have  been 
incurred :  Gunn  v.  County,  3  Ark.  427, 1840. 
79 


626  MUNICIPAL   C0KP0RATI0NS.  [CH.  XX. 

mandatory,  the  other  discretionary.1  Discretionary  powers 
are  not,  unless  in  extraordinary  and  exceptional  instances, 
to  restrain  gross  abuse,  subject  to  judicial  control;2  but  duties 
imperatively  enjoined  may,  as  we  have  just  shown,  be  enforced 
by  mandamus. 

The  general  rule  of  law  is  this :  If  the  inferior  tribunal,  cor- 
porate body,  or  public  agent  or  officer  has  a  discretion,  and  acts 
and  exercises  it,  this  discretion  cannot  be  controlled  by  man- 
damus. But  if  the  inferior  tribunal,  body,  officer,  or  agent 
refuse  to  act  in  cases  where  the  law  requires  them  to  act,  and 
the  party  has  no  other  legal  remedy,  and  where,  in  justice, 
there  ought  to  be  one,  a  mandamus  will  lie  to  set  them  in  mo- 
tion, to  compel  action;  and,  in  proper  cases,  the  court  will  set- 
tle the  legal  principles  which  should  govern,  butwithout  con- 
trolling the  discretion  of  the  subordinate  jurisdiction,  body,  or 
officer.3 

1  Ante,  Chap.  V.  p.  110,  Sec.  62 ;  Commonwealth  v.  Pittsburg,  34  Pa.  St. 
496,  516,  per  Strong,  J. ;  County  Commissioners  v.  Duckett,  20  Md.  468 ;  ib. 
449;  Rex  v.  Hastings,  1  D.  &  R.  148;  Baltimore  v.  Marriott,  9  Md.  160; 
Meyer  v.  Carolan,  9  Texas,  250 ;  Kegina  v.  Dock  Company,  2  Eng.  Railway 
Cases,  599;  Sights  v.  Yarnalls,  12  Gratt.  (Va.)  292;  Goodrich  v.  Chicago,  20 
111.  445 ;  Railroad  Company  v.  Napa  County,  30  Cal.  435 ;  Ottawa  v.  People, 
48  111.  233, 1868;  People  v.  Brooklyn,  22  Barb'.  404;  Supervisors  %.  United 
States,  4  Wall.  435,  444,  1866,  where  Mr.  Justice  Swayne  distinguishes  the 
two  classes  of  powers ;  Rex  v.  Bailiffs,  &c.  of  Eye,  2  D.  &  R.  172,  construing 
the  words  "shall  be  lawful." 

2  Ante,  Chap.  V.  p.  106,  Sec.  58;  post,  Chaps.  XXII.  XXIII. 

8  Giles's  Case,  2  Stra.  881 ;  Rex  v.  Nottingham,  Sayer,  217 ;  Hull  v.  Super- 
visors, 19  Johns.  259, 1821';  Gourley  v.  Allen,  5  Cow.  644;  People  v.  Super- 
visors, 12  Johns.  414 ;  Ex  parte  Nelson,  1  Cow.  417 ;  Ex  parte  Bailey,  2  Cow. 
479;  Elkins  v.  Athearn,  2  Denio,  191;  People  v.  Supervisors,  1  Hill  (N.,Y.), 
50 ;  ib.  362 ;  Ex  parte  Turner,  5  Ohio,  542,  543,  per  Lane,  J. ;  McKean  v. 
Louisville,  18  B.  Mon.  9 ;  Commonwealth  A.  Henry,  49  Pa.  St.  530 ;  Kennedy 
v.  Washington,  3  Cranch,  C.  C.  595;  State  v.  Robinson,  1  Kansas,  188,  220; 
Magee  v.  Supervisors,  10  Cal.  376;  State  v.  Wilmington  City  Council,  3 
Harring.  (Del.)  294. 

The  principle  in  the  text  is  well  illustrated  by  the  case  of  The  King  v. 
Bristol  Dock  Company,  6  B.  &  C.  181,  in  which  the  dock  company  was  au- 
thorized by  parliament  to  make  a  floating  harbor  in  the  city,  and  required 
"to  make  such  alterations  and  amendments  in  the  sewers  of  said  city  as 
might  or  should  be  necessary  in  consequence  of  the  floating  of  said  harbor," 
and  it  was  decided  that  the  directors  might  by  mandamus  be  commanded, 
in  the  words  of  the  act,  "  to  make  such  alterations,"  &c,  but  the  nature  of 
the  alterations  could  not  be  specified,  as  this  was  a  matter  committed  by 


CH.  XX.]  MANDAMUS. — DISCRETIONARY   POWERS.  627 

§  670.  Thus  a  mandamus  will  be  issued  by  the  proper  fed- 
eral court  to  an  officer  of  the  federal  government,  commanding 
him  to  do  a  mere  ministerial  act,  but  not  one  which  involves 
the  exercise  of  judgment  and  discretion.1 

§  671.  So  where  there  is  a  duty,  purely  ministerial,  and  not 
discretionary,  devolved  by  law  upon  the  public  officers  of  a 
state,  and  the  refusal  or  neglect  to  perform  the  duty  affects  a 
specific  legal  right,  the  person  thereby  injured  may  have  a 
mandamus.  This  doctrine,  under  the  conditions  just  stated, 
has  been  very  generally  considered  to  be  applicable  to  the 
executive  head  of  the  state ;  but  it  should  obviously  be  limited 
to  cases  where  the  right  of  the  relator  is  plain  and  the  duty  of 
the  executive  clearly  ministerial,  and  not  discretionary.  The 
leading  cases  on  this  subject  are  referred  to  in  the  note.2 

parliament  to  the  judgment  and  discretion  of  the  directors  of  the  com- 
pany. ' 

Mandamus  held  not  to  lie  to  enforce  the  award  of  a  contract  to  the  lowest 
bidder:  State  v.  Board  of  Education,  24  Wis.  683*;  State  v.  Commissioners, 
18  Ohio  St.  386;  Welch  v.  Supervisors,  23  Iowa,  199;  People  v.  Contracting 
Board,  27  N.  Y.  378;  46  Barb.  254;  33  N.  Y.  382;  Commonwealth  v.  Henry, 
49  Pa.  St.  530;  People  v.  Brennan,  39  Barb.  651.  As  to  rights  of  lowest  bid- 
der: Ante,  Chap.  XIV.  Sees.  388-392. 

1  Kendall  v.  United  States,  12  Pet.  524 ;  Decatur  v.  Paulding,  Secretary  of 
Navy  (to  compel  defendant  to  pay  pension),  14  Pet.  497,  1840;  Reeside  v. 
Walker,  Secretary  of  Treasury,  11  How.  272;  United  States  v.  Guthrie, 
Secretary  of  Treasury,  17  ib.  284;  Same  v.  Seaman,  ib.  225;  Brashear  v. 
Mason,  6  How.  97 ;  United  States  v.  Land  Commissioner,  5  Wall.  563 ;   Ex 

parte  De  Groot,  6  Wall.  497;  The  Secretary  v.  McGarrahan,  9  Wall.  298,  312, 
1869. 

A  state  court  cannot  issue  a.  mandamus  to  an  officer  of  the  United  States : 
McClung  v.  Silliman,  6  Wheat.  598. 

2  When  the  act  neglected  to  be  done  by  the  governor  of  a  state  is  purely 
ministerial,  not  discretionary,  and  affects  a  specific  private  right,  a  man- 
damus may  issue :  State  v.  Governor  of  Ohio,  5  Ohio  St.  528, 1856.  Thus 
the  governor  will,  by  mandamus,  be  compelled,  in  a  proper  case,  to  issue  com- 
mission to  an  officer  presenting  legal  evidence  of  his  election :  State  ex  rel. 
Loomis  v.  Moffitt,  5  Ohio,  358,  362,  per  Hitchcock,  J. ;  State  v.  Governor  of 
Ohio,  5  Ohio  St.  528,  1856.  Contra:  Hawkins  v.  Governor,  1  Pike  (Ark.), 
570, 1839;  State  «.  Governor,  1  Dutch.  (N.  J.)  331, 1856,  in  which  the  right 
to  issue  a  mandamus  to  the  governor,  in  any  case,  is  denied ;  People  *.  Bis- 
sell,  19  111.  229.  But  it  has  been  elsewhere  held  that  the  governor  or  exec- 
utive officers  of  a  state  may,  by  means  of  this  writ,  be  compelled  to  perform 

mere  ministerial  duty  or  act  in  which  individuals  have  an  interest:  Low 


628  MUNICIPAL   CORPORATIONS.  [OH.  XX. 

§  672.  On  the  principle  that  official  discretion  cannot  be 
judicially  interfered  with  by  mandamus,  this  writ  will  not  lie  to 
control  the  discretion  of  commissioners  to  determine  the  site 
for  a  county  seat,  they  having  been  directed  to  locate  it  as  near 
the  center  of  the  county  as  a  suitable  location  could  be  ob- 
tained, and  having  made  a  selection,  although  it  was  adrhitted 
that  it  would  be  granted  to  compel  them  to  act.1  So  where 
the  statute  vests  the  county  commissioners  with  the  power  to 
determine  when  a  court  house  and  jail  shall  be  erected  by  the 
county,  mandamus  will  not  lie  to  compel  them  to  erect  those 
buildings,  or,  if  the  contract  has  been  let,  to  proceed  with  the 
erection  thereof.2 

§  673.  So,  where  the  building  of  bridges  is  a  discretionary 
power  entrusted  to  public  or  municipal  corporations,  and  the 
proper  authorities  thereof  have,  in  good  faith,  decided  accord- 
ing to  their  judgment,  mandamus  will  not  be  issued  to  compel 
them  to  a  different  course.3     But  a  provision  in  a  municipal 

v.  Towns,  8  Geo.  360,  1850;  Middletown  v.  Lowe,  30  Cal.  596;  Magruder  v. 
Swann,  25  Md.  173;  Gotten  v.  Ellis,  8  Jones  (North  Car.),  Law,  545;  State  v; 
Wrotnowski,  17  La.  An.  156;  Biddies  Willard,  10  Ind.  62,  1857;  Bryan  v. 
Cattell,  15  Iowa,  538;  Nichols  v.  Comptroller,  4  Stew.  &  Port.  (Ala.)  154, 
1833;  Pacific  Railroad  Company  v.  Governor,  23  Mo.  353;  Chamberlains. 
Sibley,  4  Minn.  309.  In  Maurin  v.  Smith,  5  Am.  Law  Reg.  (N.  S.)  630,  and 
S.  C.  8  Rh.  Is.  192,  mandamus  was  held  not  to  lie  to  compel  the  governor 
to  perform  one  of  his  statutory  duties  as  commander-in-chief.  Mandamus 
lies  against  the  auditor  of  state  or  comptroller  of  public  accounts  where  the 
right  of  the  plaintiff  is  clear  and  no  other  remedy  is  provided,  and  the  duty 
is  not  discretionary:  Divine  v.  Harris,  SMon.  (Ky.)  440;  Nichols  v.  Comp- 
troller, 4  Stew.  &  Port.  (Ala.)  154,  1833;  Fowler  v.  Pierce,  2  Cal.  165;  Towle 
v.  State,  3  Fla.  202. 

1  State  v.  Bonner,  Busbee  (North  Car.),  Law,  257,  1853.  As  to  county  seat 
elections,  and  the  remedy  for  frauds  therein,  by  mandamus  and  in  equity, 
see  People  v.  Wiant,  48  111.  263,  1868;  see,  also,  People  v.  Salomon,  51 
111.  39. 

2  Ex  parte  Black,  1  Ohio  St.  30,  1852. 

3  State  v.  Freeholders,  3  Zabr.  (N.  J.)  214,  1851.    Post,  Chap.  XXIII. 
The  judgment  and  discretion  of  the  town  supervisors  as  to  the  necessity 

of  bridges  and  repairs  thereon  cannot  be  controlled  by  mandamus  when  Jhe 
statute  makes  them  the  judges  of  the  necessity :  State  v.  Supervisors,  16 
Wis.  613.  But  the  duty  to  repair  and  rebuild  bridges  may,  when  it  is  not  dis- 
cretionary, be  enforced  by  mandamus :  Howe  v.  Crawford  County,  47  Pa. 
St.  361 ;  Treat  v.  Middleton,  8  Conn.  243;  Brander  v.  Judges,  &c.  5.  Call  (Va), 


CH.  XX.]  MANDAMUS. —  ELECTIONS.  —  OFFICERS.  629 

charter  that  the  council  shall  "  cause  the  streets  to  be  kept  in  re- 
pair" has  been  held  not  to  confer  a  discretionary  power,  but 
to  enjoin  a  duty,  the  performance  of  which  may  be  compelled 
by  mandamus.1  The  performance  of  this  duty  is  sometimes 
enforced  by  indictment,  and  often  by  private  action  for  dam- 
ages.2 

§  674.  Mandamus  as  repeats  Municipal  Elections  and  Officers. 
— In  a  previous  chapter  the  powers  of  municipal  corporations 
as  to  elections  and  offi.ce.rs  therein,  have  been  considered;3  and  it 
may  be  here  stated  as  a  general  proposition  that  mandarin/*  is 
ordinarily  the  appropriate  remedy  to  compel  them  and  their 
officers,  in  case  of  refusal  or  neglect,  to  perform  their  duties  in 
these  respects.4  In  England  the  writ  lies,  and  is  constantly 
issued,  to  compel  the  corporation  to  elect  a  mayor  and  other 
corporate  officers  according  to  their  duty  ;*   but  if  the  office  is 

548  ;  Ottawa  v.  People,  48  111.  233 ;  People  v.  Supervisors,  1  Hill  (N.  Y.),  50. 
County  Commissioners  were,  by  statute,  "authorized"  annually,  at  their 
June  session,  to  levy  a  tax  "  for  the  construction  and  maintenance  of  a  free 
turnpike  road  through  their  county:"  held,  that  it  "authorized,"  but  did 
not  require,  the  levy  of  the  tax,  and  no  private  rights  having  intervened, 
a  mandamtis  to  levy  the  tax  was  refused:  Commissioners  v.  Sandusky 
County,  1  Ohio  St.  149,  approving  and  distinguishing  Mayor  v.  Furze,  3 
Hill  (N.  Y.),  612.  In  England  it  has  been  held  that  mandamus  will  not  be 
issued  to  determine  which  of  two  parishes  is  liable  to  repair  a  road,  under 
local  acts :  Regina  v.  Turnpike  Roads,  1 2  A.  &  E.  427.  See  Rex  v.  Commis- 
sioners of  Roads,  2  Term  R.  232. 

1  Hammar  v.  Covington,  3  Met.  (Ky.),  494,  1861  ;  Uniontown  v.  Common- 
wealth, 34  Pa.  St.  293, 1859.    Ante,  chapter  on  Streets,  Sec.  579,  note. 

2  See,  post,  Chap.  XXII. ;  also,  Chap.  XXIII.  as  to  liability  for  defective 
streets.    Post,  Sees.  747,  748. 

3  Ante,  Chap.  IX.  on  Municipal  Elections  and  Officers,  p.  174,  et  seq. 

*  lb.  Lamb  v.  Lynd,  44  Pa.  St.  624;  S.  C.  Brightley's  Election  Cases,  624- 
631,  and  note  of  the  learned  editor. 

5  Rex  v.  Cambridge,  4  Burr.  2008 ;  Rex  v.  Tregony,  8  Mod.  113  ;  Rex  t>. 
Abingdon,  1  Ld.  Raym.  561 ;  Rex  v.  St,  Martin,  1  Term  R.  149 ;  Rex  v.  Liv- 
erpool, 1  Barnard.  83 ;  Rex  o.  Woodrow,  2  Term  R.  732 ;  Rex  v.  Scarbor- 
ough, 2  Stra.  1180 ;  Rex  v.  Leyland,  3  M.  &  S.  184  ;  Rex  v.  Thetford,  8  East, 
270 ;  Rex  v.  Norwich,  1  B.  &  Ad.  310 ;  Willc.  357,  pi.  45 ;  ib.  361,  pi.  56;  Tapping 
on  Mandamus,  1 65 ;  Rex  v.  York,  4  T.  R.  699 ;  Stephens'  Nisi  Prim,  2293  -  2295 ; 
Rex  v.  Winchester,^  A.  &  E.  215 ;  Regina  v.  Pembroke  (corporation  of),  8 
Dowl.  P.  C.  302 ;  Regina  v.  Leeds  (mayor  of,  &c),  7  A,  &  E.  9Q3;  Grant  on 
Corp.  204,  208,  213,  219. 


630  MUNICIPAL    CORPORATIONS.  [CH.  XX. 

full  by  the  possession  of  an  officer  de  facto  under  color  of  right, 
a  mandamus  will  not,  as  hereafter  explained,  be  granted  to  pro- 
ceed to  a  new  election  uutil  the  person  in  possession  has  been 
ousted  upon  proceedings  in  quo  warranto}  "  The  court,"  says 
Mr.  WUlcock,2  "  will  gf*ant  a  mandamus  to  proceed  to  an  elec- 
tion of  a  new  mayor,  after  the  charter  day  has  passed  without 
such  election,  where  the  former  mayor  having  the  power  to  do 
so  holds  over,  and  refuses  to  convoke  an  assembly3  for  that 
purpose,  unless  the  charter  restrains  the  right  of  electing  to  a 
particular  time;"  and  "it  will  be  granted  for  the  election  of 
bailiffs,  chamberlains,  coroners,  and  other  annual  officers, 
although  not  the  chief  officers  of  the  corporation." 

§  675.  So,  in  this  country  it  has  been  decided  that  an  elec- 
tion for  municipal  officers  may  be  held  after  the  charter  day,  and 
that  a  mandamus  may  be  granted  to  compel  the  proper  officers 
to  give  notice  thereof.4  And  the  writ  will  lie  in  the  name  of 
the  state  on  the  relation  of  a  voter  to  compel  a  municipal  coun- 
cil to  hold  or  appoint  a  special  election,  according  to  the  charter, 
to  fill  a  vacancy  in  their  body,  when  this  is  a  duty  enjoined 
upon  them;  and  to  justify  the  writ  there  need  not  be  a  posi- 
tive refusal,  unreasonable  delay  manifesting  an  intention  not 
to  perform  the  duty,  is  sufficient.5     So  where  it  is  made  by 

1  Rex  v.  Bankes,  3  Burr.  1454 ;  Rex  v.  Cambridge,  4  ib.  2011 ;  Rex  v.  Rad- 
ford, 1  East,  80 ;  Rex  v.  Truro,  3  B.  &  A.  592 ;  Rex  v.  Derby,  7  A.  &  E.  419 ; 
Rex  v.  Hiorns,  ib.  960  ;  ib.  966 ;  Rex  v.  Colchester,  2  Term  R.  259.  Infra, 
Sees.  678-682.    Pmt,  Sec.  716. 

2  Willc.  357,  pi.  45 ;  ib.  361,  pi.  56 ;  Rex  v.  Cambridge,  4  Burr.  2011 ;  Rex 
v.  Scarborough,  2  Stra.  1180;  Rex  v.  Norwich,  1  B.  &  Ad.  310;  Angell  & 
Ames.  Sec.  700. 

3  As  to  Corporate  Assembly,  see  ante,  Chap.  X. 

If  municipal  corporations  neglect  to  hold  elections  as  empowered  by  the 
remedial  statute  of  11  Geo.  I.  Chap.  IV.  by  which  they  are  authorized  to 
supply  the  vacant  offices  of  mayor,  they  may  be  compelled  to  fill  them  by 
mandamus;    Rex  v.  Oxford,  Cas.  Temp.  Hardw.  178 ;    Rex  v.  Cambridge,  4  ' 
Burr.  2011 ;  Willc.  360. 

As  to  right  of  officers  to  Iwld  over,  see  authorities  last  cited,  and  also,  ante, 
Chap.  IX.  pp.  193-197. 

4  People  v.  Fairbury,  51  111.149,  1869.  Ante,  pp.  193-197;  Tapping  on 
Ifandamus,  165.    Post,  Sec.  722. 

5  State  v:  Rahway,  33  N.  J.  Law,  110,  1868.  Vacancies  in  municipal  offi- 
ces :    Anffij  p.  197,  Sec.  16L 


CH.  XX.]  MANDAMUS. —  ELECTIONS. —  OFFICERS.  631 

charter  the  duty  of  the  select  and  common-  councils  to  assemble 
in  joint  meeting  to  appoint  certain  corporate  officers,  not  elected 
by  the  people,  and  the  time  for  the  meeting  is  fixed  by  law  or 
ordinance,  it  is  not  discretionary  in  one  of  these  bodies  to  re- 
fuse to  meet  with  the  other,  and  if  it  does  so  refuse,  its  mem- 
bers may  be  compelled  by  mandamus.1 

§  676.  Municipal  councils,  as  we  have  before  seen,  are  often 
invested  with  the  control  of  municipal  elections,  and  are  made 
canvassers  and  judges  of  the  result,  and  they  may  be  compelled 
to  perform  their  duties  in  this- respect  by  mandamus? 

1  Lamb  &  Lynd,  44  Pa.  St.  336,  1863.  S.  C.  Brightley's  Election  Cases, 
624,  and  note.  Read,  J.,  concurred  because  this  was  a  necessary  result  of 
Kerr  v.  Trego,  47  Pa.  St.  632 ;  S.  C.  Brightley's  Election  Cases  632,  where  he 
dissented.  Ante,  Chap.  X.  p.  248,  Sec.  222.  Further,  as  to  contested  election 
cages:  Brightley's  Election  Cases,  270,  455,  466,  656.  Post,  Chap.  XXI.  on 
Quo  Warranto. 

2  Ante,  Chap.  IX.  pp.  179-183 ;  Lamb  v.  Lynd,  Brightley's  Election  Cases, 
624,  630,  and  note.    S.  C.  44  Pa.  St.  336. 

Mandamus  will  lie  to  compel  election  canvassers,  whose  duties  are  ministe- 
rial, to  act,  but  not  to  control  their  judgment :  Magee  v.  Supervisors,  10 
Cal.  376 ;  State  v.  County  Judge,  7  Iowa,  186 ;  Rice  v.  Smith,  9  Iowa,  570 ; 
State  v.  Bailey,  7  Iowa,  390.  Ante,  p.  182,  note.  Moses  on  Mandamus,  Chap. 
XIII. ;  Brightley's  Election  Cases,  261,  300,  305,  423, 434. 

It  will  also  lie,  upon  the  relation  of  any  voter  or  tax  payer  interested, 
to  compel  an  election  officer  to  announce  the  result  of  an  election :  People  v. 
Salomon,  46  111.  415.  So  it  will  lie  to  a  returning  officer,  board  of  examin- 
ers, or  managers  of  an  election,  or  council,  to  compel  them  to  give  a  certifi- 
cate of  election  to  the  person  elected:  State  v.  The  Judge,  &c.  13  Ala.  805, 
1848;  Strong,  Petitioner,  20  Pick.  484, 1838;  O'Ferrall  v.  Colby,  2  Minn.  180^ 
State  v.  Loomis,  5  Ham.  (Ohio)  358,  362;  Eex  v.  York,  4  Term  E.  669.  Such 
certificates  are  important  since  they  are  prima  facie  evidence  of  title,  though 
not  conclusive  in  the  trial  of  contested  elections :  Kerr  v.  Trego,  47  Pa.  St. 
292,  1864;  S.  C.  Brightley's  Election  Cases,  632,  641,  and  note;  Carpenter  v. 
Ely,  4  Wis.  420;  Brightley's  Election  Cases,  258,  314,  320,435.  Somali- 
damus  lies  to  a  municipal  corporation  to  compel  it  to  act  according  to  its 
duty  upon  the  sufficiency  of  sureties  offered  by  a  person  elected  to  a  munici- 
pal office.  Ante,  p.  192,  note.  Mandamus  lies  in  favor  of  relators  duly 
elected  to  a  municipal  office  to  compel  the  mayor  or  proper  officer  to  ad- 
minister the  oath  of  office  to  them :     Ex  parte  Heath,  3  Hill  (N.  Y.),  42,  1842. 


632  MUNICIPAL    CORPORATIONS.  [CH.  XX. 

To  Take  Municipal  Office. 

§  677.     In  England,  on  the  principle  heretofore  adverted  to,1  ■ 
if  a  corporator,  elected  to  a  corporate  office,  neglect  or  refuse, 
without  sufficient  legal  excuse,  to  serve,  he  may  be  compelled 
by  mandamus,  but  it  is  doubtful,  as  before  suggested;  how  far 
this  doctrine  is  applicable  in  this  country/ 

To  Admit  to  Municipal  Office. 

§  678.  Ill  appropriate  cases,  mandamus  will  lie  to  compel 
the  proper  officers  of  a  municipal  corporation  to  ddmit  to  the 
possession  of  his  place  one  elected  to  any  municipal  or  corpo- 
rate office.3  Mandamus  is  not  considered,  in  England,  the 
proper  remedy  to  try  the  right  to  a  public  or  municipal  office, 
and  a  mandamus  to  admit  gives  no  title  to  the  person  admitted, 
but  it  enables  him  to  try  or  enforce  his  right;  and  if  there  is 
another  remedy  open  to  the  applicant,  as,  for  instance,  an  in- 
formation in  the  nature  of  quo  icarranto  (which  lies  where  the 
adverse  claimant  or  officer  is  in  possession),  &  mandamus  will 
not  be  granted.  But  it  will  be  granted,  says  Mr.  Willcock, 
"  where  quo  warranto  does  not  lie,  although  the  office  be  already 
full,  as  otherwise  in  many  cases  the  applicant  would  be  with- 
out remedy."  d  In  cases  where  mandamus  lies,  the  applicant 
will  be  refused  the  writ  unless  he  shows  a  prima  facie  title.5 

§  679.  In  this  country  the  same  general  principles  are  rec- 
ognized, although  there  is,  as  we  shall  see,  some  difference  of 
opinion  as  to  the  scope  of  the  remedy  by  mandamus  where 

1  Ante,  p.  198,  Sec.  162;  Rex  v.  Bedford,  1  East,  80;  Rex  v.  Leyland,  3  M. 
&  S.  184;  Willc.  367.  When  the  writ  lies  to  compel  an  officer  to  take  upon 
himself  the  duties  of  his  office :  Ante,  p.  198,  Sec.  162 ;  Tapping  on  Man- 
damus, 189. 

2  Ante,  p.  198,  Sec.  162;  p.  201,  Sec.  165.  v 

3  State  v.  Rah  way,  33  N.  J.  (Law)  111,  1868;  Willc.  368  pi.  74;  Angell  & 
Ames  on  Corp.  Sec.  703. 

1  Regina  v.  Leeds,  11  A.  &  E.  512;  Rex  v.  Winchester,  7  A.  &  E.  215 ;  Rex 
v.  Sawyer,  10  B.  &  C.  486 ;  Regina  v.  Slatter,  11  A.  &  E.  505;  Regina  v.  Derby 
(councillors  of),  7  A.  &  E.  419 ;  Same  v.  Hiorns,  ib.  960 ;  Frost  v.  Chester,  5 
E.  &  B.  531;  Willc.  373,  pi.  87.  The  requisites  of  returns  to  writs  of  mandamw 
to  admit  are  stated  by  Mr.  Willcock,  at  pp.  413-417,  and  by  Angell  &  Ames, 
Sec.  722. 

0  Willc  36*.  x>l  74. 


CH.  XX.]      MANDAMUS. —  TO  ADMIT  TO  MUNICIPAL  OFFICE.  633 

there  is  an  officer  or  adverse  claimant  in  possession.  Thus 
mandamus  lies  to  compel  the  city  council  to  admit  a  councilman 
duly  elected  to  that  office.1  But  on  the  ground  that  mandamus 
was  not  a  proper  proceeding  to  try  the  right  to  a  puhlic  office, 
the  court  declined  to  make  an  order  to  show  cause,  in  a  case 
where  the  relator  claimed  to  have  been  elected  by  the  common 
council  to  the  office  of  assessor,  and  also  claimed  that  the 
council  wrongfully  deprived  him  of  his  office  by  refusing  to 
count  the  vote  of  one  of  the  members  in  his  favor.2 

§  680.  The  adjudged  cases  in  this  country  agree  that  quo 
warranto,  or  an  information  or  proceeding  in  the  nature  of  a 
quo  warranto,  is  the  appropriate  remedy,  when  not  changed  by 
charter  or  statute,  for  an  usurpation  of  a  municipal  franchise,  as 
well  as  for  unauthorized  usurpations  and  intrusions  into  munici- 
pal offices.3  When  no  special  tribunal,  with  exclusive  and  final 
power  to  settle  contested  titles  to  office,  is  provided,  the  regu- 
lar method  is  by  quo  warranto;*  and  the  instances  are  excep- 
tional when  this  may  be  done  on  mandamus.  If  another  is 
commissioned,  and  in  actual  discharge  of  the  duties  of  the 
office,  an  adverse  claimant  to  the  office  is  not  entitled  to  a 
mandamus,  but  must  resort  to  quo  warranto  ;    but  it  was  admit- 

1  State  v.  Rahway,  33  N.  J.  (Law)  111,  1868. 

*  People  d.  Detroit,  18  Mich.  338, 1869. 

3  Reynolds  V.  Baldwin,  1  La.  An.  165 ;  followed,  Cochran  v.  McCleary,  22 
Iowa,  75, 1867;  State  v.  Ramos,  10  La.  An.  420 ;  People  D.  Matteson,  17  111. 
167;  People  v.  Stevens,  5  Hill  (N.  Y.),  616, 1843;  Hullman  v.  Honocomp,  5 
Ohio  St.  237,  1855.    Ante,  p.  241,  Sec.  210.    Post,  Sees.  714— 716. 

Legality  of  election  and  title  to  office  cannot  [ordinarily]  be  tested  by 
bill  in  chancery :  lb.  But  see  in  exceptional  instances :  Kerr  v.  Trego,  47 
Pa.  St.  292,  1864;  cited  ante,  p.  243,  Sec.  213;  S.  C.  Brightley's  Election 
Cases,  632.  Remedy  by  injunction:  Brightley's  Election  Cases,  573,  623,  and 
cases  cited. 

The  title  to  office  must  be  tested  on  quo  warranto,  and  cannot  be  ques- 
tioned collaterally:  People  v.  Fletcher,  2  Scam.  (111.)  487;  Bonner  v.  State 
7  Geo.  473, 1849,  and  cases  cited ;  People  v.  Kip,  4  Cow.  382,  note ;  16.358, 
1822;  Lewis  v.  Oliver,  4  Abb.  Pr.  Rep.  121;  St.  Louis  County  Court  v. 
Sparks,  10  Mo.  117, 1846;  Winston  v.  Moseley,  35  Mo.  146.  Ante,  Chap.  IX. 
p.  179,  et  seq. ;  ante,  Chap.  X. ;  post,  Chap.  XXI.  In  Pennsylvania,  quo  war- 
ranto lies  to  try  the  right  to  all  offices,  military  as  well  as  civil:  Common- 
wealth v.  Small,  27  Pa.  St.  31;  Field  v.  Commonwealth,  32  Pa.  St.  478.'. 
<■  Ante,  Chap.  IX.  pp.  179-183;  People  v.  Detroit,  18  Mich.  338. 
80 


634  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

ted  that  where  the  office  is  attempted  to  be  held  under  an 
appointment  which  is  merely  colorable  and  void,  mandamus 
would  lie.1  In  Texas  it  is  held  that  mandamus  will  lie  to  re- 
cover or  to  be  admitted  to  the  possession  of  an  office  to 
which  the  claimant  has  been  elected  and  commissioned.2  In 
Georgia,  and  some  of  the  other  states,  the  English  rule  is 
maintained,  namely,  that  where  a  person  is  an  officer  de  facto 
— that  is,  is  in  the  exercise  of  the  duties  of  an  office  under  a 
prima  facie  right  or  color  of  title — the  remedy  to  admit  an- 
other having  a  lawful  claim  is  not  by  mandamus,  but  by  an  in- 
formation in  the  nature  of  a  quo  icarranto} 

§  681.  But,  in  a  case  in  Maryland,4  in  which  the  claimant 
sought  not  only  the  removal  of  the  incumbent,  but  the  posses- 
sion of  the  office  for  himself,  the  objection  was  made  that 
quo  warranto,  and  not  mandamus,  was  the  proper  remedy  to  try 
the  title  to  the  office ;  but  the  Court  of  Appeals  held  that  the 
objection  was  not  well  taken,  and  that  the  plaintiff  need  not 
resort  to  quo  warranto  as  preliminary  to  mandamus,  as  this  might 
prove  inadequate,  by  reason  of  the  delay  it  would  occasion. 
The  court  was  of  opinion  that  mandamus  to  compel  the  defend- 
ant to  surrender  to  the  petitioner  the  office  was  the  only  com- 

1  State  v.  Dunn,  Minor  (Ala.),  46,  1821 ;  State  v.  Auditor,  36  Mo.  70,  1865, 
per  Wagner,  J.;  People  v.  Scrugham,  20  Barb.  302.     Post,  Sec.  716. 

2  Lindsley  v.  Luckett,  20  Texas,  516. 

8  Bonner  v.  State,  7  Geo.  473,  1849;  State  v.  Deliesseline,  1  McCord 
(South  Car.),  52;  State  v.  Dunn,  1  Minor  (Ala  ),  46;  People  v.  Corporation 
of  New  York,  3  Johns.  Cas.  79;  Rex  o.  Mayor  of  Colchester,  2  Term  B.  259 ; 
S.  P.  St.  Louis  County  Court  v.  Sparks,  10  Mo.  117,  1846.  "  Mandamus  will 
not  be  issued  to  admit  a  person  to  an  office  while  another  is  under  color  of 
right:"  State  v.  Auditor,  36  Mo.  70,  per  Wagner,  J.  Mandamus  will  not  lie 
to  turn  out  one  officer  and  to  admit  another  in  his  place :  People  v.  Matte- 
son,  17  111.  167 ;  People  v.  Head,  25  111.  325 ;  People  v.  Hilliard,  29  111.  413, 
1862.  But  a  groundless,  colorless  claim  to  an  office,  or  a  pretended  intru- 
sion into  or  retention  of  it,  will  not,  as  against  a  person  duly  elected  and 
acting,  be  sufficient  to  drive  the  informant  to  a  quo  warranto,  and  he  may 
have  a  mandamus  to  compel  such  person,  though  he  was  the  informant's 
predecessor  in  office,  to  deliver  up  the  books  and  property  belonging  to  the 
office :  People  v.  Kilduff,  15  111.  492, 1854;  Bex  v.  Cambridge,  4  Burr.  2008 ; 
Borough  of  Tintagel  (case  of)  2  Stra.  1003;  Bex  v.  Winchester,  7  A.  &  E. 
215.  When  mandamus  is  the  proper  remedy  to  determine  the  right  to  an 
office :  Grant  on  Corp.  216.    Post,  Sees.  715,  716. 

4  Harwood  v.  Marshall,  9  Md.  83,  1856. 


CH.  XX.]       MANDAMUS. — TO  ADMIT  TO  MUNICIPAL  OFFICE.  635 

plete  remedy,  since  "under  the  quo  warranto  information  the 
judgment  might  amove  the  occupant,  hut  would  not  install  the 
claimant."1  And  the  court  further  held  that  mandamus  might 
issue  although  the  ofiice  was  filled  by  the  defendant,  who 
claimed  title.  It  admitted  the  conflict  of  decision  on  this 
point,  but  regarded  mandamus  as  particularly  applicable  to  the 
cause  before  the  court. 

§  682.  There  is  much  to  recommend  the  views  of  the  Mary- 
land court  in  the  case  just  referred  to,  since  the  delays  of  re- 
sorting to  quo  warranto  are  such,  in  consequence  of  the  short 
terms  of  our  elective  officers,  as  generally  to  amount  to  a  denial 
of  justice.  Before  the  quo  warranto  proceedings  can  be  deter- 
mined, the  term  of  the  claimant  frequently  expires,  and  a  judg- 
ment in  his  favor  is  a  barren  victory.2  It  is  agreed  that  where, 
for  any  reason,  quo  warranto  will  not  lie,  and  there  is  no  other 
adequate  remedy  provided,  the  right  to  a  disputed  office  may 
be  settled  on  mandamus.3  Looking  at  the  question  in  view  of 
our  short  official  terms,  we  should  say  that  where  the  effect  of 
compelling  a  resort  to  quo  warranto  would  be  unreasonably  to 
delay  the  decision  of  the  disputed  right  (which  concerns  not 
only  the  individuals,  but  the  public),  the  court  would  be  justi- 
fiedin  interfering  by  mandamus,  so  far,  at  least,  as  to  see  that 
the  incumbent  is  actually  a  bona  fide,  possessor  of  the  place,  and 
that  there  is  a  real  dispute  and  fair  doubt  as  to  which  party 
has  the  legal  title.* 

1  lb. ;  citing  Strong's  Case,  20  Pick.  497 ;  Dew's  Case,  3  Hen.  &  Munf. 
(Va.)  1,  23.    See,  also,  in  Massachusetts,  Howard  v.  Gage,  6  Mass.  462. 

5  Where  a  judgment  of  ouster  in  quo  warranto  has  been  rendered  in  an 
inferior  court  and  the  defendant  has  duly  appealed  and  filed  the  necessary 
supersedeas  bond,  mandamus  from  the  superior  court  to  the  inferior  court  to 
execute  the  judgment  of  ouster  will  not  be  awarded,  although  the  term  of 
office  will  expire  before  the  appeal  can  be  regularly  heard  in  the  appellate 
tribunal:  United  States  v.  Addison,  22  How.  (TJ.  S.)  174, 1859.  If  the  appel- 
lant fails  to  prosecute  his  appeal  with  effect,  it  is  intimated  by  Mr.  Justice 
McLean  that  the  supersedeas  bond  would  be  available  in  such  a  case  to  the 
appellee  or  defendant  in  error  as  an  indemnity:  lb.  p.  185.  Infra,  Sec. 
712. 

3  Willc.  373,  pi.  87;  People  v.  Stevens,  5  Hill  (N.  Y.),  616, 1843. 

*  Post,  Chap.  XXI.  When  conflicting  claims  to  office  may  be  settled  on 
mandamus,  discussed,  but  not  determined,  in  the  People  v.  Stevens,  5  Hill 
(N.  Y.),  616, 1843;  People  v.  Scrugham,  20  Barb.  302;  People  v.  Kilduff,  15 


636  MUNICIPAL  CORPORATIONS.  [CH.  XX. 

To  Restore  to  Municipal  Office. 

§  683.  The  power  of  municipal  corporations  to  amove  officers 
has  been  treated  in  a  former  chapter; 1  and  the  corporation, 
as  we  have  seen,  may,  in  some  cases,  be  compelled  by  man- 
damus to  exercise  this  power.2  Where  a  municipal  officer  or 
member  of  a  municipal  council  has  been  illegally  suspended 
or  illegally  removed,  he  is,  in  general,  entitled  to  a  mandamus 
to  be  restored?  The  doctrine  has  been  sanctioned,  that  where 
an  officer  of  a  corporation  has  been  irregularly  removed,  yet  if 
the  court  see  good  cause  for  the  removal,  that  is,  if  they  see 
that  by  regular  proceedings  another  amotion  for  the  same 
cause  would  follow,  and  that  it  is  the  duty  of  the  corporation 

111.  492;  Banton  v.  Wilson,  4  Texas,  400;  Lindsly  v.  Luckett,  20  Texas,  516; 
Angell  &  Ames,  Sec.  706.  In  Ex  parte  Heath,  3  Hill  (N.  Y.),  42,  the  ques- 
tion whether  the  relators  were  duly  elected  to  municipal  offices  was 
incidentally  determined  on  mandamus,  but  the  question  as  to  the  '■  proper 
remedy  was  not  made : "  5  Hill,  629,  per  Bronson,  J.  But  where  mandamus 
is  resorted  to  in  order  to  try  which  of  two  persons  has  been  elected  to  an 
office,  and  indeed  in  every  such  proceeding  except  quo  warranto,  the  regu- 
lar determination  of  the  board  of  canvassers  is  conclusive :  People  v.  Ste- 
vens, 5  Hill  (N.  Y.),  616,  where  court  refused  application  of  relator  to  com- 
pel, by  mandamus,  predecessor  in  office  to  deliver  books  and  papers,  be- 
cause relator's  title  to  the  office  was  not  clear ;  People  v.  Vail,  20  Wend. 
12, 14.    Post,  Sec.  716. 

If  there  be  doubt  as  to  the  validity  of  an  election,  the  court  will  not  in- 
terfere by  mandamus  in  the  first  instance,  but  will  leave  the  parties  to  their 
remedy  by  quo  warranto:  Commonwealth  v.  Commissioners,  5  Rawle  (Pa.), 
75. 

1  Ante,  Chap.  IX.  p.  211-229;  Willc.  375;  Grant  on  Corp.  243,  416. 

2  Ante,  p.  223,  Sec.  189,  note. 

8  Ante,  p.  221,  Sec.  186,  note;  p.  228,  Sec.  193;  Duffield's  Case,  Bright. 
Elec.  Cas.  646;  Mayor  of  Durham's  Case,  1  Sid.  33;  Bac.  Abr.  title  "Man- 
damus;" Grant  on  Corp.  247-250;  Willc.  378;  State  v.  Common  Council, 
9  Wis.  254;  Den  v.  Judges,  3  Hen.  &  Munf.  (Va.)  1.  Where  county  com- 
missioners removed  a  clerk,  the  court  ordered  a  peremptory  mandamus  to 
restore  the  party  removed  to  his  office,  because  the  record  did  not  show  the 
ground  of  removal:  Street  v.  County  Commissioners,  Breese  (111.),  25. 
Where  a  corporate  body  strikes  off  the  name  of  a  member  without  notice 
to  him,  a  mandamus  to  restore  him  will  be  granted:  Delacy  v.  Neuse,  &c. 
Company,  1  Hawks  (North  Car.),  274,1821;  Duffield's  Case,  Bright.  Elec. 
Cas.  646.  Mandamus  will  not  lie  to  restore  one  to  an  office  to  which  he  is 
not  entitled,  though  he  may  have  been  illegally  removed:  Major  v.  Ran- 
dolph, 4  Watts  &  Serg.  (Pa.)  514 ;  People  v.  Metropolitan  Police  Board,  26 
N.  Y.  316. 


CH.  XX.]  MANDAMUS. — BOOKS   AND    DOCUMENTS.  637 

to  exercise  the  power  to  amove,  the  peremptory  writ  may, 
in  the  discretion  of  the  court,  be  refused  to  compel  his  res- 
toration.1 

To  Enforce  Delivery  and  Inspection  of  Books  and  Papers. 

§  684.  Mandamus,  as  we  have  before  seen,  is  a  proper  rem- 
edy for  the  duly  elected  officer  of  a  municipal  corporation  to 
obtain  possession  of  the  seal,  books,  papers,  and  records  apper- 
taining to  such  office,  from  his  predecessor;2  but,  as  elsewhere 
stated,  the  courts  will  not,  in  general,  try  by  mandamus  whether 
one  person  is  entitled  to  an  office  actually  filled  by  another, 
under  commission  or  color  of  right.3  In  this  country,  the 
records,  public  books,  and  by-laws  of  municipal  corporations 
are  of  a  public  nature,  and  if  such  a  corporation  should  refuse 
to  give  inspection  thereof  to  any  person  having  an  interest  therein 
or,  perhaps,  for  any  proper  purpose  to  any  inhabitant  of  the 
corporation,  whether  he  had  any  special  or  private  interest  or 
not,  a  writ  of  mandamus  would  lie  to  command  the  corporation 
to  allow  such  inspection,  and  copies  to  be  taken,  under  reason- 
able precautions  to  secure  the  safety  of  the  originals.1 

1  Rex  v.  The  Mayor,  &c.  Cowper,  523 ;  Rex  v.  The  Mayor,  &c.  2  Term  R. 
181, 182,  per  Ashhurst,  J.;  Rex  v.  Bristol,  1  D.  &  R.  389;  S.  C.  5  B.  &  Aid. 
731 ;  Ex  parte  Paine,  1  Hill  (N.  Y-),  665, 667, 1841,  per  Cowen,  J. ;  Rex  v.  Bank, 
2  B.  &  Aid.  620.  Ante,  p.  208,  note;  p.  226,  Sec,  192.  Mr.  Willcock  (Mimic. 
Corp.  379,  pi.  100)  states  the  doctrine  thus:  A  peremptory  mandamus  to  be 
restored  "will  not  be  granted  to  a  public  officer  who  admits  that  he  was 
justly  but  irregularly  amoved;''  citing  Rex  v.  The  Mayor,  &c.  Cowper,  523. 
See,  also,  Rex  v.  Campion,  1  Sid.  97 ;  Rex  v.  Qxon,  2  Salk.  429 ;  Rex  v.  Slat- 
ford,  5  Mod.  366 ;  Rex  v.  Ipswich,  2  Ld.  Raym,  1240.  Requisites  of  returns 
to  a  mandamus  to  restore :  Willc.  417-424;  Angell  &  Ames,  Sees.  723-725, 
729, 

>  Ante,  p.  264,  Sec.  239;  People  v.  Kilduff,  15  111.  492,  1854;  Tapping  on 
Mandamus,  50,94;  3  Bl.  Com.  110;  Rex  v.  Buller,  8  East.  388 ;  Rex  v.  Hop- 
kins, 1  Q.  B.  161 ;  Rex  v.  Greene,  6  A.  &  E-  549.  Relator,  who :  Bates  v. 
Plymouth,  14  Gray,  163.    Post,  Sec.  722. 

9  People  v  Head,  25  111.  325;  People  v.  Hilliard,  29  111.  413,  1862;  supra, 
Sees.  678-682;  Tapping  on  Mandamus,  27,  28;  State  v.  Pitot,  21  La.  An.  336, 
1869 ;  Grant  on  Corp.  216,  and  authorities  cited.  Lies  against  mere  usurp- 
ers, without  color  of  right:   Kimball  v.  Lamprey,  19  N.  H.  215. 

4  Ante,  p.  265,  Sec.  240.  Further,  as  to  inspection :  1  Greenl.  Ev.  Sees. 
471-478;  Angell  &  Ames,  Sec.  707;  Tapping  on  Mandamus,  52,  95;  Rex  v. 
Newcastle,  2  Stra.  1223;  Rex  v.  Babb,  3  Term. R.  580;  Rex  v.  Shelley,  ib. 
142;  Rex  v.  Lucas,  10  East,  235;  Rex  v.  Tower,  4  M.  &  S.  162. 


638  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

To  Enforce  Duties  Towards  Creditors. 

§  685.  Mandamus  is  one  of  the  principal  remedies  by  which 
municipal,  and  public  corporations  are  compelled  to  perform 
their  duties  towards  their  creditors.  The  power  of  the  legislature 
over  these  corporations  is  such  that  it  may  require  them  to 
levy  a  tax  to  pay  creditors,  and  obedience  to  such  requirement 
may  be  enforced  by  mandamus.1  The  power  of  municipal  cor- 
porations to  make  contracts  and  to  create  liabilities  has  been 
before  considered,2  and  this  authority  imposes  the  duty  of  pro- 
viding for  the  payment  of  obligations  and  liabilities  in  the  spe- 
cial mode  prescribed  by  law,  and  if  no  such  mode  is  prescribed, 
then  by  the  levy  and  collection  of  taxes  under  the  provisions 
of  the  charter  or  other  legislative  act.3  Whether  the  duty  to 
provide  for  the  payment  of  the  liabilities  of  the  corporation  be 
specially  enjoined,  or  whether  it  results  from  the  general  pow- 
ers and  nature  of  the  corporation,  it  may,  in  all  proper  cases, 
be  equally  enforced  by  mandamus.4, 

1  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496, 1859 ;  Newman  v.  Justices,  5 
Sneed  (Tenn.),  695,  1854 ;  ante,  Chap.  IV.  Sees.  35,  36,  41 ;  Darlington  v. 
Mayor,  &c.  of  New  York,  31  N.  Y.  164;  Commonwealth  v.  Allegheny 
County,  37  Pa.  St.  277 ;  Bassett  v.  Barbur,  11  La.  An.  672 ;  Von  Hoffman  v. 
Quincy,  4  Wall.  535,  1866. 

2  Ante,  Chap.  XIV.  on  Contracts.    Post,  Chap.  XXIII. 

3  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496,  510,  1859 ;  Commonwealth 
v.  Allegheny  County,  37  Pa.  St.  277,  1860.  In  this  case,  Thompson,  J.,  says: 
"  The  authority  to  create  a  debt  implies  an  obligation  to  pay  it,  and  where 
no  special  mode  is  provided,  it  is  implied  that  it  is  to  be  done  in  the  ordi- 
nary way,  by  the  levy  and  collection  of  taxes : "  37  Pa.  St.  p.  290.  Ante,  p.  23, 
note.    See  Chap.  XIX.  on  Taxation.    Hasbrouck  v.  Milwaukee,  MS.  1870. 

*  lb.  See,  also,  Walkley  v.  Muscatine,  6  Wall.  481 ;  The  Mayor  v.  Lord, 
9  Wall.  409;  Commonwealth  v.  Allegheny  County,  32  Pa.  St.  218,  1858; 
Commonwealth  v.  Perkins,  43  Pa.  St.  400;  Maddox  v.  Graham,  2  Met.  (Ky.) 
56,1859;  Lexington  ti.  Mulliken,  7  Gray  (Mass.),  280,  1856;  State  v.  Mil- 
waukee, 20  Wis.  87,  1865;  Von  Hoffman  v.  Quincy,  4  Wall.  535,  1866;  Butz 
v.  Muscatine,  8  Wall.  575,  1869;  Galena  v.  Amy,  5  Wall.  705,  1866;  Pegrarn 
v.  County,  64  North  Car.  557, 1870 ;  Soutter  v.  Madison,  15  Wis.  30 ;  Flagg  v. 
Palmyra,  33  Mo.  440.    Hasbrouck  v.  Milwaukee,  MS.  1870. 

Form  of  alternative  writ  in  favor  of  creditor :  Commonwealth  v.  Pittsburg, 
34Pa!  St.  496. 

In  Mississippi,  mandamus  is  the  proper  rernedy  of  the  creditor  to  compel 
the  cpunty  board  of  police  to  proceed  to  audit  the  claim,  and  when  audited 
the  party  is  entitled  to  a  county  warrant  on  the  treasurer,  and  if  there  is  no 


CH.  XX.]  MANDAMUS.  —  DUTIES  TOWARDS  CREDITORS.  639 

§  686.  We  have  seen  that  it  is  a  general  rule,  relating  to 
the  writ  under  consideration,  that  it  will  not  lie  if  there  be  a 
plain  and  complete  remedy  by  the  more  ordinary  processes  of, 
the  law;  and  this  principle  has  been  applied  to  the  mode  of 
compelling  municipal  corporations  to  meet  their  liabilities  and 
obligations.     Therefore,  it  has  been  generally,  but  not  uni- 

money  in  the  treasury,  nvmdumus  will  lie  to  compel  the  board  to  levy  a  tax 
to  pay  the  warrant :  Board,  &c.  v.  Grant,  9  Sm.  &  Marsh.  77,  1847 ;  Madison 
County  Court  v.  Alexander,  Walker,  Rep.  523,  1832;  Carroll  v.  Board  of 
Police,  28  Miss.  38. 

In  Arkansas:  Gunn  v.  County,  3  Ark.  427. 

In  Wisconsin,  by  construction  of  the  statutes,  judgments  against  incor- 
porated cities  are  to  be  enforced,  not  by  execution,  but  the  amount  is  to  be 
made  part  of  the  next  tax  roll  and  collected  as  other  taxes :  Crane  v.  Fond 
du  Lac,  16  Wis.  196,  1862.  But  judgments  in  that  state  may  be  enforced  by 
mandamus  to  levy  and  collect  the  requisite  tax  to  pay  them :  State  v.  Milwau- 
kee, 20  Wis.  87;   State  v.  Beloit,  ib  79;   Soutter  v.  Madison,  15  Wis.  30. 

In  Iowa,  the  remedy  of  a  creditor  against  county  corporations  (State 
v.  County  Judge,  5  Iowa,  380)  and  upon  ordinary  municipal  indebtedness  is 
by  suit,  and  not  by  mandamus,  where  the  indebtedness  is  in  the  original 
form,  as  a  simple  contract  debt:  Coy  v.  Lyons,  17  Iowa,  1;  State  v.  Daven- 
port, 12  Iowa,  335. 

In  Pennsylvania,  it  is  held  that  an  ordinary  execution  cannot  be  issued 
against  a  municipal  corporation ;  that  none  of  the  property  of  such  a  cor- 
poration, whether  real  or  personal,  "  necessary  for  governmental  purposes," 
can  be  seized  or  sold  thereon,  and  that  the  proper  remedy  for  the  judgment 
creditor  is  the  mandamus  execution  provided  by  statute,  which  commands 
the  corporation  treasurer  to  pay  the  amount  of  the  judgment  out  of  any 
unappropriated  moneys  in  his  hands,  and  which  must  be  obeyed  by  the 
officer  whether  the  council  have  made  an  appropriation  therefor  or  not. 
These  writs  have  priority  in  the  order  in  which  they  are  served :  Monaghan 
v.  Philadelphia,  28  Pa,  St.  207,  1857.  Infra,  Sec.  687,  note.  And,  in  the 
same  state,  it  has  been  held  that  an  action  would  not  lie  upon  the  resolu- 
tion of  a  municipal  corporation  directing  the  mayor  to  issue  certificates  of 
debt  to  an  individual,  the  only  remedy  being  by  mandamus:  Common- 
wealth v.  Lancaster,  5  Watts  (Pa.),  152.  Mandamus  to  county  commission- 
ers to  draw  orders  on  county  treasury  refused  where  the  treasury  has  no 
money  therein  with  which  the  orders  can  be  paid:  Price  v.  County  Com- 
missioners, 1  Whart.  (Pa.)  1;  S.  P.  Commonwealth  v.  County  Commission- 
ers, 2  ib.  286.  Remedy  of  claimant  against  a  county  in  Pennsylvania — 
when  by  action  and  when  by  mandamus,  see  Hester's  Case,  2  Watts  &  Serg. 
416;  Commonwealth  v.  Commissioners,  &c.  16  Serg.  &  Rawle,  317;  Lyon  v. 
Adams,  4  ib.  443 ;   Wilson  v.  Commissioners,  7  Watts  &  Serg.  197. 

Remedy  by  mandamus  to  compel  payment  of  county  orders  or  warrants  or  audited 
claims:  Coleman  v.  Neal,  8  Geo.  560;  ante,  Chap.  XIV.  on  Contracts;  State 
v.  Mount,  21  La.  An.  352;  Connor  v.  Morris,  23  Cal.  447;  Keller  v.  Hyde,  20 
Cal.  593;  Cuthbert  v.  Lewis,'  6  Ala.  262.    Mandamus  does  not  lie,  in  New 


640  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

forinly,  held,  if  the  creditor  may  bring  suit  against  the  corpo- 
ration and  obtain  a  judgment,  which  may  be  enforced  by 
ordinary  execution,  that  mandamus  will  not  lie  to  compel  pay- 
ment, in  advance  of  judgment  obtained,  and  this  view  is  the 
one  most  consistent  with  principle,  when  the  matter  stands 
wholly   unaffected   by   legislation.1     When  judgment  is   ob- 

York,  to  compel  supervisors  to  audit  and  allow  the  amount  of  a  tax  ille- 
gally assessed  and  collected  from  the  relator:  People  v.  Supervisors,  &c.  11 
N.  Y.  (1  Kern.)  563.  In  Icnva,  it  is  held  that  mandamus  will  not  lie  to  com- 
pel the  county  auditing  officer  to  act  by  either  allowing  or  disallowing  a 
claim  against  the  county,  for  the  reason  that  the  claimant  has,  by  an  action 
in  the  courts,  a  plain  and  adequate  remedy :  State  v.  County  Judge,  5  Iowa, 
380.  Mandamus  lies  to  a  city  treasurer  to  compel  the  performance  of  the 
ministerial  act  of  issuing  a  warrant  for  an  audited  or  approved  bill:  State  v. 
Mount,  21  La.  An.  352,  369 ;  Reynolds  v.  Taylor,  43  Ala.  420 ;  People  v.  Bren- 
nan,  39  Barb.  536.  Mandamus  will  not  lie  to  an  auditor  of  a  county  or  other 
public  corporation  to  draw  an  order  when  the  amount  has  not  been  ascer- 
tained, and  when  he  has  by  law  no  power  to  fix  the  amount:  Putnam 
County  v,  Allen  County,  1  Ohio  St.  322;  Burnet  v.  Auditor,  &c.  12  Ohio,  57; 
State  v.  County  Auditor,  19  Ohio,  116;  State  v.  Mount,  21  La.  An.  35S;  Peo- 
ple r.  Flagg,  17  N.  Y.  584.    Ante,  Sec.  406. 

When  debt  is  payable  out  of  a,  particular  fund,  the  remedy  is,  ordinarily, 
by  mandamus,  and  not  by  action :  Insane  Hospital  v.  Higgins,  15  111.  185. 
See  ante,  Chap.  XIV.  on  Contracts.  Liability  to  be  sued,  see  post,  Chap. 
XXIII.    Ante,  Sec.  413. 

1  People  v.  Clark  County,  50  111.  213,  1869;  State  v.  County  Judge,  5  Iowa, 
380,  383 ;  Coy  v.  Lyons,  17  Iowa,  1 ;  State  u.  Davenport,  12  Iowa,  335 ;  Lex- 
ington v.  Mulliken,  7  Gray,  280,  1856.    Supra,  Sees.  666-668. 

In  Chicago  v.  Hasley,  25  111.  595,  1861,  the  question  was  presented, 
whether,  at  common  law,  or  in  the  absence  of  an  express  statute  authorizing  it, 
a  judgment  against  a  municipal  corporation  could  be  enforced  by  an  ordi- 
nary fieri  facias.  The  majority  of  the  court  were  of  opinion  that  such  a  writ 
was  not  allowable,  and  quashed  it,  holding  that  the  only  proper  course 
for  the  creditor  to  pursue,  after  refusal  to  pay,  was  by  mandamus,  to  com- 
pel payment,  or  the  levy  of  a  sufficient  tax  for  that  purpose.  The  con- 
clusion that  their  property  is  exempt  from  sale  on  execution  is  based 
upon  the  propositions  that  such  corporations  are  created  for  public  and 
civil  purposes;  that  to  pay  their  debts,  they  are  clothed  with  the  power 
to  raise  money  by  taxation;  that  their  property  is  possessed  for  corpoi 
rate  purposes,  and  not  in  the  way  in  which  it  is  possessed  by  individu- 
als; that  to  levy  upon  and  sell  such  property — for  instance,  water  works, 
fire  engines,  public  buildings,  the  revenues,  &c— would  destroy  the  cor- 
poration, or,  at  least,  the  means  of  enabling  it  to  discharge  its  proper 
functions. 

As  to  exemption  of  municipal  revenues  from  judicial  seizure:  Ante,  p.  112, 
Sees.  64,  65.  As  to  sale  of  municipal  property  on  execution,  see  ante,  Chap. 
XV.  Sec.  446. 


CH.  XX.]  MANDAMUS.  —  DUTIES  TOWARDS  CREDITORS.  641 

tained,  and  there  is  no  property  subject  to  execution  out  of 
which  it  can  he  made,  mandamus  will  lie,  and  is  the  proper 
remedy,  to  compel  the  levy  and  collection  of  the  necessary 
taxes  to  pay  the  judgment.  When  the  claim  is  reduced  to 
judgment,  the  duty  to  provide  for  its  payment  becomes  per- 
fect, and  if  it  can  be  paid  in  no  other  Way,  it  must  be  done  by 
the  levy  and  collection  of  a  tax  for  that  purpose,  and  this  duty 
will  be  enforced  by  mandamus}    Indeed  mandamus,  and  not  a 

In  the  absence  of  an  express  provision  of  law  to  that  effect,  creditors  of 
a  municipal  corporation  cannot,  outside  of  the  New  England  states,  resort 
to  the  individual  property  of  the  inhabitants  for  the  purpose  Of  discharging 
a  judgment  against  the  corporation.  Their  remedy  is  by  mandamus  to  com- 
pel the  corporation  to  pay  the  debt  by  levying  a  tax ;  but  the  failure  of  the 
corporation  to  make  the  levy,  or  of  the  inhabitants  to  pay  the  tax,  does  not 
render  their  individual  property  liable  to  be  taken  by  the  creditor :  Hor- 
ner v.  Coffey,  25  Miss.  434, 1853.  In  this  case  it  appeared  that  the  town  of 
Grand  Gulf  was  incorporated  with  the  usual  powers  of  contracting,  suing 
and  being  sued,  and  levying  taxes.  A  judgment  was  recovered  against  the 
corporation,  on  which  execution  was  returned  "nulla  bona.''  The  corpora- 
tion refused  to  levy  a  tax  to  pay  the  judgment,  whereupon  the  creditor 
issued  another  execution,  and  levied  the  same  upon  the  private  property 
of  the  inhabitants.  The  court  restrained  the  proceeding,  holding  that  in 
the  absence  of  express  provision,  private  property  could  not  be  taken  for 
corporate  debts;  and  refusing  to  follow  the  doctrine  laid  down  in  Angell  & 
Ames  on  Corp.  Sec.  629,  and  in  Beardsley  v.  Smith,  16  Conn.  368.  Ante, 
Chap.  XV.  Sec.  446.    Infra,  Sec.  693,  note. 

1  Supervisors  v.  United  States,  4  WalL  435, 1866;  Coy  v.  Lyons,  17  Iowa, 
1 ;  Olney  v.  Harvey,  50  111.  453, 1869;  Frank  v.  San  Francisco,  21  Cal.  668; 
Schafferfl.  Cadwallader,  36  Pa.  St.  126;  Galena  v.  Amy,  5  Wall.  705, 1866; 
Von  Hoffman  v.  Quincy,  4  Wall.  535;  Eiggs  A  Johnson  County,  6  Wall.  166, 
1867;  Weber  v.  Lee  County,  ib.  210;  United  States  v.  Keokuk,  ib.  514;  State 
v.  Hug,  44  Mo.  116, 1869;  State  v.  Milwaukee,  20  Wis.  87,  1865 ;  States 
Beloit,  20  Wis.  79, 1865;  Soutter  v.  Madison,  15  Wis.  30;-  State  e.  Wilson,  17 
Wis.  687 ;  Watertown  v.  Cady,  20  Wis.  501.  Held  to  lie,  in  a  state  court,  to 
enforce  a  judgment  in  the  federal  court  of  the  district;  but  qusere,  State  v. 
Beloit,  20  Wis.  79.    See  Ex  parte  Holman,  28  Iowa,  88. 

Where  a  city  ^corporation  was  commanded  to  levy  and  collect  a  specific 
tax  sufficient  to  pay  the  relator's  judgment,  a  return  showing  that  they  had 
levied  a  tax  to  pay  this  judgment,  and  other  claims,  is  not  sufficient.  Other 
claims  cannot,  in  such  case,  be  included.  The  return  should  state  facts 
showing  performance  of  the  mandate,  or  a  sufficient  excuse  for  the  non- 
performance of  the  duty  enjoined :  Benbow  v.  Iowa  City,  7  Wall.  313, 1868. 
Mr.  Justice  Davis,  in  this  case,  observes :  "  To  make  the  return  properly 
responsive  to  the  writ,  it  was  necessary  to  disclose  the  whole  act  constitut- 
ing the  levy,  so  as  to  enable  the  court  to  determine  whether  it  was  suffi- 
cient to  pay  the  judgment  of  the  relator."  This  remark  is  made  in  relation 
81 


642  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

bill  in  equity,  is  the  proper  mode  of  compelling  the  perform- 
ance, by  a  municipality,  of  the  duty  of  levying  a  tax  to  pay 
judgments  against  it.1 

§  687.  Where  the  law  under  which  the  debt  was  incurred 
provides  for  the  levy  of  a  special  tax  to  pay  it,  this  duty  will  be 
enforced  by  mandamus,  and  in  such  cases  it  is  no  answer  to  an 
application  for  this  remedy  that  an  execution  has  not  been  re- 
turned nulla  bona,  or  that  the  corporation  debtor  may  have 
property  subject  to  sale  on  execution.2 

§  688.  Where  a  municipal  corporation  is  authorized  by  the 
legislature  to  create  a  debt  of  a  specific  character,  and  to  bor- 
row money  to  pay  it,  and  to  make  provision  for  the  payment 
of  the  principal  and  interest  of  the  money  so  borrowed,  by  the 
assessment  and  collection  of  such  taxes  as  may  be  necessary, 

to  that  part  of  the  return  which  states,  in  general  terms,  that  the  defendant 
had  levied  a  tax  sufficient  to  pay  the  judgment. 

As  to  the  right  of  the  creditor  to  have  the  tax,  which  is  ordered  to  be 
levied,  set  apart  and  applied  to  his  Use,  see,  also,  Coy  v.  Lyons,  17  Iowa,  1 ; 
Galena  v.  Amy,  5  Wall.  705 ;  Loute  v.  Allegheny  County,  10  Pittsburg  Legal 
Journal,  241 ;  Pollock  v.  Laurence  County,  7  ib.  373.  Judgment  creditor 
entitled,  as  a  reward  of  his  diligence,  to  priority  over  simple  contract  cred- 
itors :  Coy  v.  Lyons,  supra.  Mandamus  may  be  refused  if  the  corporation 
has  been  guilty  of  no  unreasonable  or  improper  delay  in  levying  the  tax : 
State  v.  Putnam  County,  19  Ohio,  415. 

'  Walkley  v.  Muscatine,  6  Wall.  481,  1867. 

2  Knox  County  v.  Aspinwall,  24  How.  (U.  S.)  376,  1860.  In  thiscase  an 
act  of  Assembly  authorized  the  county  to  issue  its  bonds  and  coupons  (see  21 
How.  542),  and  made  it  the  duty  of  the  county  commissioners,  for  the  pur- 
pose of  paying  the  interest  due  on  the  bonds,  "at  the  levying  of  the  county 
taxes  for  each  year,  to  assess  a  special  tax,  sufficient  to  realize  the  amount 
of  the  interest  to  be  paid  for  the  year : "  S.  P.  State  v.  Davenport,  12  Iowa, 
335. 

The  rights  of  the  creditor  under  a  mandamus  execution  against  a  county, 
and  its  effect  upon  the  county  and  its  funds,  under  the  statute  of  Penn- 
sylvania, are  very  fully  considered  in  Loute  v.  Allegheny  County,  10 
Pittsburg  Legal  Journal,  241,  and  Pollock  v.  Laurence  County,  7  ib.  373.  It 
is  held  by  these  cases  that  the  effect  of  such  an  execution  is  to  set  apart 
'or  the  creditor  all  unappropriated  money  in  the  treasury,  and  also  the 
irst  that  may  come  into  it,  so  far  as  necessary,  to  pay  the  execution.  See, 
ilso,  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496,  523,  as  to  nature  of  mara- 
smus execution;  Monaghan  ».  Philadelphia,  28  Pa.  St.  207,  1857.  Supra, 
ec  685,  note.  ,  •        .  -. 


OH.  XX.]  MANDAMUS. — DUTIES  TOWARDS  CREDITORS.  643 

a  mandamus  is  the  appropriate  remedy  of  the  creditor  to  com- 
pel the  corporation  to  levy  and  collect  the  taxes  to  pay  such 
debt  or  the  interest  thereon.1  And  it  has  been  several  times 
adjudged,  that  where  there  is  a  duty  to  levy  and  collect  a 
special  tax  to  pay  a  special  class  of  debts — as,  for  example, 
railway  aid  bonds — and  there  is  no  valid  defence  alleged  or 
claimed,  and  no  question  made  as  to  the  genuineness  of  the 
bonds  or  coupons,  and  they  are  in  the  possession  of  the  relator, 
that  a  prior  judgment  at  law  was  not  essential  to  give  the 
right  to  a  mandamus  to  compel  the  proper  officers  to  levy  and 
collect  the  tax.2  Undoubtedly,  in  such  cases,  the  court  may 
award  the  writ  without  a  prior  judgment,  but  if  there  is  any 
doubt  as  to  the  validity  of  the  debt,  the  court  may  well  decline 
to  grant  the  writ  until  applied  for  to  enforce  a  judgment  ob- 
tained. And  in  the  Federal  Court,  as  we  shall  presently  see, 
there  must  be  a  prior  judgment. 

§  689.  Although  there  may  be  a  discretion  in  the  city  coun- 
cil as  to  the  amount  of  tax  which  they  are  authorized  to  levy  for 
ordinary  purposes,  yet  a  creditor  who  has  obtained  judgment 
is  entitled  to  have  the  whole  power  of  the  corporation  exerted, 

1  Von  Hoffman  v.  Quincy,  4  Wall.  535, 1866 ;  Walkley  v.  Muscatine,  6  Wall. 
481 ;  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496,  1859 ;  State  v.  Commission- 
ers, 6  Ohio  St.  280,  1856;  Flagg  v.  Palmyra,  33  Mo.  440;  Commonwealth  v. 
Allegheny  County,  37  Pa.  St.  277,  1860;  Maddox  v.  Graham,  2  Met.  (Ky.) 
56, 1859 ;  Supervisors  v.  United  States,  4  Wall.  435, 1866;  Kiggs  v.  Johnson 
County,  6  Wall.  166 ;  Knox  County  v.  Aspin wall,  24  How.  384;  Mayor  v. 
Lord,  9  Wall.  409 ;  Supervisors  v.  Durant,  ib.  415. 

3  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496,  1859;  Maddox  v.  Graham,  2 
Met.  (Ky.)  56,  1859 ;  State  ».  Commissioners,  Ac.  6  Ohio  St.  280,  287, 1856; 
Commonwealth  v.  Allegheny  County,  37  Pa.  St.  277, 1860 ;  See  State  v.  Dav- 
enport, 12  Iowa,  335,  where  the  point  was  left  open.  What  the  relator, 
who  is  the  holder  of  bonds  issued  by  a  municipal  corporation  under  ex- 
press authority  of  the  legislature,  must  show  in  order  to  entitle  him  to  a 
mandamus  against  the  corporation  to  compel  it  to  levy  and  collect  a  tax  to 
pay  to  such  bonds,  see  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496,  1859, 
where  it  is  fully  considered ;  Commonwealth  v.  Allegheny  County,  32  ib. 
218;  Commonwealth  v.  Allegheny  County,  37  ib.  277, 1860;  State  v.  Milwau- 
kee, 20  Wis.  87. 

In  the  State  v.  Commissioners,  6  Ohio  St.  280,  287, 1856,  it  is  held  that  an 
agreement  of  the  railroad  company  to  pay  the  interest  on  the  bonds  of  the 
county' is  collateral,  and  does  not  relieve  the  county  from  primary  liability 
to  the  holder:  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496, 1859. 


644  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

if  it  be  necessary,  for  the  payment  of  his  judgment.1  So 
where  an  act  of  the  legislature  provided  that  the  city  council 
"may,  if  it  believe  that  the  public  good  and  best  interests  of 
the  city  require  "  it,  levy  a  tax  to  pay  its  funded  debt,  a  judg- 
ment creditor  on  a  debt  of  this  character  may,  by  mandamus, 
compel  it  to  levy  a  tax  if  it  refuses  to  do  so.8  So,  also,  where 
an  act  of  the  legislature  declared  that  the  "board  of  super- 
visors of  counties  owing  debts  which  their  current  revenue, 
under  existing  law,  is  not  sufficient  to  pay,  may,  if  deemed  ad- 
visable, levy  a  special  tax,  to  be  used  in  liquidation  of  such  in- 
debtedness," the  Supreme  Court  of  the  United  States  held  that 
this  power  was  mandatory  if  its  exercise  was  necessary  in 
order  to  pay  judgments  rendered  against  the  county.3  The 
court  places  the  decision  upon  the  principle  that  where  power 
is  given  to  public  officers,  though  conferred  in  language  which 
is  permissive  in  form,  it  will  be  regarded  as  peremptorily  im- 
posing a  positive  and  absolute  duty,  whenever  public  interests 
and  individual  rights  call  of  right  for  its  exercise,  and  distin- 
guishes the  case  from  those  which  involve  the  exercise  of  a  dis- 
cretion, judicial  in  its  nature,  and  whioh  the  courts  cannot  con- 
trol.4 

§  690.  If  the  municipal  officers  fail  or  neglect  to  perform 
the  duty  of  levying  a  tax  at  the  annual  or  regular  meeting,  they 
may  be  compelled  by  mandamus  to  meet  again  and  do  their 
duty,  the  same  as  if  it  had  been  performed  at  the  proper  time 
and  place,  and  this  without  the  aid  of  any  special  legislative 
enactment.5 

1  Coy  v.  Lyons,  17  Iowa,  1,  1864;  Butz  v.  Muscatine,  8  Wall.  575,  1869, 
overruling  Clark  v.  Davenport,  14  Iowa,  494;  Commonwealth  v.  Pittsburg, 
34  Pa.  St.  496,  513,  517, 1859.  As  to  limitation  on  rate  or  amount  of  taxa- 
tion, see  Butz  v,  Muscatine,  supra;  ante,  p.  149,  Sec.  107;  Chap.  XIX,  on 
Taxation. 

2  Galena  *.  Amy,  5  Wall.  705, 1866. 

3  Supervisors  v.  United  States,  4  Wall.  435, 1866. 

4  As  to  mandatory  and  discretionary  powers,  see,  further:  Ante,  p.  110, 
Sec.  62;  supra,  Sec.  669 ;  People  v.  Supervisors,  12  Johns.  416. 

5  People  v.  Supervisors,  8  N.  Y.  (4  Seld.)  317,  330, 1853,  and  prior  oases  in 
that  state,  cited  by  WUlard,  J. 


OH.  XX.]  MANDAMUS. — DUTIES  TOWARDS  CREDITORS.  645 

§  691.  On  the  ground  that  where  the  law  absolutely  re- 
quires a  ministerial  act  to  be  done  by  a  public  officer,  and  he 
neglects  or  refuses  to  do  it  without  sufficient  legal  excuse,  he 
is  liable  in  a  private  action  to  the  person  injured  by  his  miscon- 
duct, the  Supreme  Court  of  the  United  States  held  where  a 
judgment  creditor  of  a  public  corporation  had  procured  a  per- 
emptory mandamus  to  county  supervisors  to  levy  a  tax  sufficient 
to  pay  his  judgment,  which  they  refused  or  neglected  to  obey, 
that  they  were  liable  to  him  in  a  civil  action  in  damages  to  the  ex- 
tent of  the  injury  thereby  occasioned.  The  court  observed  that  a 
mistake  as  to  their  duty  or  honest  intentions  would  constitute 
no  defence  to  such  an  action,  but  it  gave  no  opinion  as  to  the 
rule  by  which  to  measure  the  damages — that  is,  whether  the 
plaintiff  would  be  limited  in  his  recovery  to  the  actual  injury 
sustained,  or  whether  his  recovery  would  be  the  amount  of  his 
judgment,  with  interest.1 

§  G92.  The  power  to  issue  the  writ  of  mandamus  as  an  orig- 
inal aud  independent  proceeding  has  not  been  conferred  by 
congress  upon  the  Circuit  Courts  of  the  United  States,  and  these 
courts  are  authorized  only  to  issue  this  writ  when  ancillary  to 
a  jurisdiction  already  acquired.2  Applying  this  rule,  the 
Supreme  Court  of  the  United  States  has  decided  that  the 
holder  of  coupons  attached  to  bonds  issued  by  a  public  cor- 
poration, and  which  have  not  been  put  into  judgment,  is  not 
entitled  to  a  mandamus  from  the  federal  Circuit  Court  to  com- 
pel the  levy  and  collection  of  a  tax  to  pay  such  coupons.3 

1  Amy  v.  Supervisors,  11  Wall.  136, 1870.  The  refusal  of  the  treasurer  of 
a  public  corporation  to  pay  a  certified  demand  against  the  corporation  -will 
not,  unless,  perhaps,  where  it  can  be  shown  that  the  refusal  was  wilful, 
and  that  he  had  funds  in  his  hands  applicable  to,  the  purpose  for  which 
they  were  demanded,  make  the  treasurer  personally  responsible  in  an  action 
at  law,  and  the  appropriate  remedy  of  the  party  injured  is,  by  mandamus, 
to  compel  him  to  make  payment:  Huff?;.  Knapp,  1  Seld.  (N.  Y.)  65,  1851, 
affirming  S.  C.  3  Sandf.  Superior  C.  E.  299.  See  Bartlett  v.  Crozier,  17 
Johns.  458;  The  People  v.  Lawrence,  6  Hill  (N.  Y.),  644.  Supra,  Sec.  666, 
note.  Further,  as  to  personal  liability  of  public  officers:  Ante,  p.  210,  Sec. 
176,  and  note. 

2  Mclntyre  v.  Wood,  7  Cranch,  504;  McClung  v.  Silliman,  6  Wheat.  601; 
Kendall  v.  United  States,  12  Pet.  584;  The  Secretary  v.  McGarrahan,  9  Wall. 
311;  County  of  Bath  v.  Amy,  Supreme  Court  United  States,  December 
term,  1871  (not  yet  reported). 

3  County  of  Bath  v.  Amy,  supra.    Ante,  Chap.  XIV.  on  Contracts. 


646  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

§  693.  But  where  the  Circuit  Court  of  the  United  State- 
has  rendered  a  judgment  against  a  public  or  municipal  cors 
poration,  it  has  the  authority,  under  the  fourteenth  section  of 
the  judiciary  act  of  1789,  to  issue  the  writ  of  mandamus  where 
it  is  the  appropriate  remedy  to  enforce  such  judgment.  By 
means  of  this  writ,  the  Circuit  Court  of  the  United  States  may 
compel  the  officers  of  public  and  municipal  corporations, 
though  deriving  their  existence  from  state  legislation,  to 
perform  their  duty  to  levy  and  collect  the  necessary  taxes  to 
pay  judgments  rendered  therein  against  such  corporations. 
The  writ  of  mandamus,  when  so  issued,  is  the  final  process  of 
the  court  for  the  enforcement  of  its  judgment,  and  performs, 
in  substance  and  effect,  the  office  of  a  writ  of  execution ;  and 
it  is  considered  by  the  Supreme  Court  of  the  United  States  to 
be  a  writ  necessary  to  render  effectual  the  jurisdiction  of  the 
Circuit  Court,  which  attached  when  the  action  was  commenced, 
and  which  existed  when  the  judgment  was  rendered,  and 
which  continues  until  it  is  collected.  It  is  a  result  of  these 
principles,  and  of  the  nature  of  the  relations  of  the  national 
and  state  jurisdictions,  that  neither  the  state  legislatures  nor 
the  state  courts  can  enjoin,  or  in  any  manner  interfere  with, 
the  federal  tribunals  in  the  exercise  of  the  power  of  enforcing 
their  own  judgments.1  To  enforce  the  payment  of  judgments 
rendered  therein,  the  federal  courts,  on  the  refusal  of  the  state 
officers  to  levy  taxes  as  commanded,  have,  in  a  few  instances, 
exercised,  though  with  expressions  of  reluctance,  the  high  and 
delicate  authority  of  appointing  the  United  States  Marshal  as 

1  Riggs  v.  Johnson  County,  6  Wall.  166, 1867,  which  is  the  leading  case  on 
this  subject.  Approved  and  followed:  Weber  v.  Lee  County,  ib.  210; 
United  States  v.  Keokuk,  ib.  514,  518 ;  Supervisors  v.  Durant,  9  Wall.  415 ; 
The  Mayor  v.  Lord,  ib.  409;  Amy  v.  Supervisors,  11  Wall.  136,  1870;  Knox 
County  v.  Aspinwall,  24  How.  376,  384, 1860.  Ante,  Chap.  XIV.  Sees.  415- 
422. 

Illustrative  of  the  controversy  between  the  federal  and  state  authority  in 
Iowa,  growing  out  of  municipal  railway  aid  bonds,  see :  Biggs  v.  Johnson 
County,  6  Wall.  166 ;  Weber  v.  Lee  County,  0.  210 ;  United  States  v.  Keokuk, 
ib.  514,518;  Lee  County  v.  Rogers,  7  Wall.  181,  1868.  Ante,  Chap.  XIV. 
Sees.  415-426;  Holman,  Ex  parte,  28  Iowa,  88,  1869.  In  King  v.  Wilson,  1 
Dillon,  C.  C.  5j>5, 1871,  the  history  of  the  state  adjudications  is  given  on  thei 
§ubjec$  of  municipal  aid  to  railways.    Ante,,  p,  144,  Sec.  104. 


CH.  XX. J  MANDAMUS. — DUTIES  TOWARDS  CREDITORS.  647 

a  commissioner  for  that  purpose.     The  decisions  on  this  sub- 
ject are  referred  to  in  the  note.1 

1  Supervisors  v.  Rogers,  7  Wall.  175, 1868.  The  appointment  of  the  mar- 
shal, in  this  case,  as  such  commissioner,  was  considered  to  be  authorized 
by  the  statute  of  the  state  (Revision  of  Iowa  of  1860,  Sec.  3770),  adopted  in 
this  particular  case,  and  not  by  a  general  rule  of  practice.  See,  also,  Lansing 
v.  County  Treasurer,  1  Dillon,  C.  C.  522, 1870;  Welch  v.  Ste.  Genevieve,  ib. 
130,  1871. 

In  Morgan  v.  Beloit,  in  the  United  States  Circuit  Court  for  Wisconsin, 
the  question  of  the  right  of  a  judgment  creditor  of  a  municipality  which 
would  not  levy  and  collect  the  necessary  taxes  to  pay  his  judgment,  to  resort 
to  equity  for  relief,  was  presented.  The  debt  of  the  town,  in  that  case,  was 
incurred  under  a  special  act  of  the  legislature,  approved  February  10,  1853, 
authorizing  the  town  of  Beloit  to  issue  bonds  in  aid  of  a  railroad,  and  the 
3d  section  of  the  act  provided  that  "  the  board  of  supervisors  of  the  town 
of  Beloit,  whenever  the  same  shall  become  necessary,  shall  annually  levy  a  tax 
upon  the  taxable  property  of  said  town.,  sufficient  to  pay  the  interest  upon 
such  bonds,  after  deducting  the  dividends  due  to  such  town  on  said  shares 
of  stock.''  The  complainant  recovered  a  judgment  in  the  federal  court  in 
1860,  and  a  peremptory  mandamus  was  issued  in  1862,  commanding  the 
board  to  levy  a  tax  to  pay  the  judgment,  but,  by  repeated  resignations, 
causing  vacancies  and  want  of  quorum,  no  tax  had  ever  been  levied,  and 
no  attachments  for  contempt  (as  the  bill  alleged)  could  be  had  or  made 
effectual.  The  bill  made  the  town,  in  its  corporate  capacity,  and  its  inhabi- 
tants, defendants,  and  asked  for  a  decree  subjecting  the  taxable  property  of 
the  town  and  of  the  inhabitants  to  sale  at  auction  by  the  marshal.  A  de- 
murrer to  the  bill  was  sustained  and  the  bill  dismissed  by  Miller,  District 
Judge,  holding  the  Circuit  Court.  On  appeal,  the  Supreme  Court,  after  one 
argument,  ordered  a  re-argument  upon  this  question ;  "  Whether  or  not  it 
is  competent  for  the  Circuit  Court  of  the  United  States,  on  a  bill  filed  for 
the  purpose,  to  appoint  a  master  or  commissioner  to  levy  and  collect  a  tax, 
under  and  in  pursuance  of  the  3d  section  of  an  act  passed  by  the  legislature 
of  Wisconsin,  February  10th,  1853,  upon  the  taxable  property  of  the  town, 
sufficient  to  pay  the  judgment  of  the  plaintiff,  in  case  of  a  refusal  of  the 
supervisors  of  the  town  to  levy  the  same,  after  service  of  a  peremptory  writ 
of  mandamus."  At  the  December  term,  1869,  the  decree  below,  dismissing 
the  bill,  was  affirmed  by  an  equal  division  of  opinion,  there  being  at  the 
time  eight  judges  on  the  bench.  No  opinions  were  delivered,  and  no  re- 
port of  the  case  has  been  published.  The  arguments  of  counsel  (Mr.  Car- 
penter for  the  bill,  and  Messrs.  Palmer  and  Ryan,  contra)  were  mainly  ad- 
dressed to  the  question  of  equity  jurisdiction  in  such  a  case,  and  the  right  to 
subject  the  private  property  of  the  inhabitants  to  the  payment  of  the  debts 
of  the  municipality.    Ante,  p.  641,  note.    Supra,  Sec.  446. 

In  Rees  v.  Watertown,  in  the  Circuit  Court  of  the  United  States  for  the 
western  district  of  Wisconsin,  June  term,  1872,  the  bill,  which  was  similar 
to  the  one  in  the  case  of  Morgan  v.  Beloit,  supra,  was  dismissed,  Hopkins, 
District  Judge,  expressing  an  opinion  against  the  right  claimed,  and  Drum- 


648  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

Application  for  the   Writ — Relator — Rule  Nisi. 

§  694.  It  is  not  our  purpose  to  treat  at  large  of  the  pro- 
ceedings and  practice  in  respect  to  the  remedy  by  mandamus. 
We  shall  refer  to  these  in  a  general  way  only,  in  or'der  the 
better  to  illustrate  the  application  of  the  writ  to  municipal 
corporations  and  municipal  officers.  The  practice  in  the  dif- 
ferent states  is  as  at  common  law,  modified  by  statutory 
enactment.  The  writ  is  not  granted,  of  course,  but  upon  mo- 
tion, based  upon  affidavits,  or  upon  a  suggestion  supported  by 
oath,  which  must  be  drawn  up  with  precision,  and  state  with 
clearness  and  certainty  the  grounds  for  the  application,  and 
must  also  show  a  case  in  which  the  writ  lies.  If  there  be 
another  remedy  apparently  adequate  and  complete,  the  affida- 
vits must  show  why  it  is  not  sufficient  or  Why  it  would  prove 
ineffectual.1 

mond,  Circuit  Judge,  in  view  of  the  diversity  of  opinion  among  the  judge's 
in  Morgan's  case;  concurring  in  that  disposition  of  the  matter. 

In  Hubbell  v.  Waterloo  (town  of),  the  Circuit  Court  of  the  United  States 
for  the  eastern  district  of  Wisconsin  (present,  Drummond  and.  Miller,  JJ.),  in 
April,  1872,  in  an  application  in  a  mandamus  proceeding  supplemental  to  a 
judgment  against  the  town  of  Waterloo  for  the  appointment  of  the  marshal 
as  commissioner  to  levy  and  collect  the  taxes,  which  the  iocal  officers 
evaded,  and  refused  (by  successive  resignations)  to  levy  and  collect,  the 
judges  were  divided  in  opinion  as  to  the  power  of  the  court  to  make  the 
appointment,  and  the  question  was  certified  to  the  Supreme  Court  of  the 
United  States,  where  it  is  understood  to  be  now  pending. 

1  Bex  v.  Oxford,  7  East,  345;  Buller's  Nisi  Prim,  201;  Stephens'  Nisi 
Prius,  2318;  Willc.  357,  pi.  43,  44;  Eex  v.  Margate  Pier  Company,  3  B.  & 
.  Aid.  221,  224 ;  People  v.  Supervisors,  27  Cal.  655;  People  e.  Chicago,  51  111. 
17.  An  alternative  writ  stands  in  the  place  of  the  declaration  in  an  ordina- 
ry action,  and  must  show  a  good  prima  facie  case,  or  it  is  demurrable:  lb. ; 
People  v.  Eansom,  2  Comst.  490;  Hoxie  v.  Commissioners,  25  Maine,  333; 
Canal  Trustees  v.  People,  12  111.  254;  State  v.  Bailey,  7  Iowa,  390;  State  v. 
Haben,  22  Wis.  660 ;  People  v.  Hilliard,  29  111.  413 ;  People  v.  Baker,  35 
Barb.  105;  State  v.  Board,  &c.  10  Iowa,  157. 

"In  practice,"  says  Thompson,  J.,  "the  party  seeking  the  remedy  by 
mandamus  presents  to  the  court  a  prima  facie  case,  entitling  him  to  the  writ 
by  way  of  suggestion  [or  by  affidavit  or  sworn  information].  This  being  in 
proper  form  and  sufficient  in  substance,  an  alternative  mandamus  may  be 
awarded  upon  it,  reciting  the  complaint  of  the  relator  and  his  demand  for 
redress,  and  commanding  the  party  to  whom  it  is  directed  either  to  obey 
it  or  return  his  reasons  for  not  doing  so^'  This  alternative  is  what  gives  the 
denomination  of  'alternative  mandamus'  to  the  first  writ.    The  establish- 


CH.  XX.J  MANDAMUS. APPLICATION  FOR  THE  WRIT.  649 

§  695.  Where  the  application  for  the  writ  relates  to  a  matter 
affecting  the  public,  such  as  the  enforcement  of  an  act  of  the 
legislature  for  the  public  benefit,  the  state  or  its  attorney,  in  a 
proper  case,  is  entitled  to  the  writ  as  of  right.1  It  has  been 
held  sufficient  to  entitle  a  person  to  become  an  applicant  or 
relator  in  such  cases  that  he  is  interested  as  a  citizen;2  but  the 
cases  on  this  point  are  not  entirely  uniform.  Accordingly,  a 
voter  in  a  municipality  may  apply  for  a  mandamus  to  compel 

ment  of  a  duty,  and  the  obligation  to  perform  it,  is  upon  the  plaintiff  to 
show,  and  this  is  considered  as  done,  prima  facie,  when  the  court  awards 
the  writ.  The  respondent,  upon  service  of  it,  is  bound  either  to  obey,  or 
show  that  the  plaintiff  has  no  right  to  demand  obedience,  or  that  no  duty 
exists  which  he  can  be  compelled  to  perform.  Whenever  this  is  not  ac- 
complished by  a  demurrer,  or  by  a  general  traverse  of  the  facts  set  forth  in 
the  writ,  it  is  generally  done  by  matters  averred  in  the  return  by  way  of 
confession  and  avoidance : "  Commonwealth  v.  Allegheny  County,  37  Pa. 
St.  277,  279,  1860. 

If  there  be  no  special  statute  limitation,  the  application  for  the  writ  may 
be  made  within  the  period  given  by  statute  for  bringing  ordinary  actions 
for  similar  injuries:  People  v.  Supervisors,  12  Barb.  446.  But  the  writ,  not 
being  one  of  right,  there  is  a  discretion  to  refuse  it  if  the  applicant  has  been 
guilty  of  unreasonable  laches  and  delay  in  asserting  his  right :  The  Queen 
v.  Halifax  Road  Trustees,  12  Q.  B.  442;  Savannah  v.  State,  4  Geo.  26;  Rex 
v.  Lancashire,  12  East,  366;  Bex  v.  Canal  Company,  1  M.  &  S.  32;  Begina  v. 
Canal  Company,  11  A.  &  E.  316 ;  True  v.  Melvin,  43  N.  H.  503. 

If  no  just  and  useful  purpose  requires  the  writ  of  mandamus  to  be  grant- 
ed, the  court  has  discretion  to  refuse  it:  State  v.  Graves,  19  Md.  351,  374; 
Williams  v.  Commissioners,  35  Maine,  345 ;  People  v.  Supervisors,  15  Barb. 
607 ;  People  v.  Pratt,  30  Cal.  223.  So  in  a  case  where  the  substantial  right 
claimed  by  the  relator  is  doubtful:  Insurance  Company  v.  Wilson's  Heirs, 
8  Pet.  291 ;  People  v.  Chicago,  51  111.  17 ;  Stephens'  Nisi  Prius,  2293.  Or  is 
insignificant,  as  where  only  two  dollars  are  involved :  People  v.  Hatch,  33 
111.  9. 

1  Tapping  on  Mandamus,  54,  56,  288.  Thus,  where  the  application  is  to 
proceed  to  the  election  of  burgess  in  the  place  of  one  deceased,  the  motion 
is  ex  debito  justitise,  and  there  is  no  discretion  to  refuse  the  writ :  lb. ;  State 
v.  Railroad  Company,  29  Conn.  538 ;  People  v.  Attorney  General,  22  Barb. 
114;  People  v.  Tracy,  1  Denio,  617. 

2  Pike  County  v.  State,  11  111.  202;  Ottawa  v.  People,  48  111.  233;  Regina*. 
Archbishop,  11  Q.  B.  578;  People  v.  Halsey,  53  Barb.  547;  People  v.  Brook- 
lyn, 22  Barb.  404;  Hamilton  v.  State,  3  Ind.  452 ;  People  v.  Collins,  19  Wend. 
56 ;  Moses  on  Mandamus,  197 — author's  opinion;  Ex  parte  Fuller,  25  Ark. 
261;  People  o.San  Francisco,  36  Cal.  594;  Bryan  v.  Cattell,  15  Iowa,  538; 
compare  Sanger  v.  Commissioners,  25  Maine,  291 ;  People  v.  University  Re- 
gents, 4  Mich.  98, 1856 ;  People  «.  Prison  Inspectors,  ib.  187 ;  Bates  v.  Ply- 
mouth, 14  Gray,  163. 

82 


650  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

the  council  to  hold  an  election  to  fill  a  vacancy  in  their  body,1 
or  to  test  the  validity  of  an  election.2  In  this  country  the  writ 
is  resorted  to  for  the  enforcement,  in  proper  cases,  of  individ- 
ual rights,  or  rights  of  a  private  nature,  in  the  absence  of  any 
other  adequate  legal  remedy,  and  to  prevent  a  failure  or  defect 
of  justice;  and,  in  such  cases,  the  party  really  or  beneficially 
interested  in  the  performance  of  the  legal  duty  which  the  der 
fendant  neglects  or  refuses  to  perform  may  apply  for  the  writ.3 

1  State  v.  Rahway,  33  N.  J.  (Law)  110,  1868. 

2  State  v.  County  Judge,  7  Iowa,  186 ;  State  v.  Bailey,  ib.  390. 

5  Commonwealth  v.  Allegheny  County,  ,37  Pa.  St.  277,  279,  1860;  Bryan  v. 
Cattell,  15  Iowa,  538,  per  Wright,  J.;  Ottawa  v.  People,  48111.233,  1868 
Maddox  v.  Graham  (right  of  municipal  creditors),  2  Met.  (Ky.)  56,  1859 
The  People  v.  Pacheco  29  Cal.  210;  Marbury  v.  Madison,  1  Cranch,  137 
Kendall  v.  Stokes,  3  How.  (U.  S.)  87.  As  to  the  rights  of  tax -payers:  Post, 
("hap.  XXII.  See  Bex  v.  Frost,  8  A.  &  E.  822,  for  a  case  in  which  an  indi- 
vidual having  a  remote  interest  in  corporation  funds  was  held  not  entitled 
to  the  writ. 

Who  may  be  a  relator:  The  inhabitants  of  a  county  who  are  put  to  in- 
convenience in  reaching  the  court  house  have  such  an  interest  in  the 
erection  of  a  new  one  in  the  new  county  site  as  will  authorize  them,  as 
relators,  to  sue  out  a  mandamus  to  the  proper  authorities  or  officers  to 
proceed  to  the  construction  of  the  new  court  house,  as  provided  by  law,  and 
to  levy  taxes  pursuant  to  the  requirements  of  the  statute:  Watts  v.  Carroll 
Parish,  11  La.  An.  141, 1856.    Supra,  Sec.  672. 

Under  a  provision  in  the  Ohio  code  (Sec.  570),  that  the  writ  "  may  issue 
on  the  information  of  the  party  beneficially  interested,"  the  writ  may 
properly  issue,  and  the  proceedings  be  conducted  in  the  name  of  the  state 
on  the  relation  of  the  party  interested:  State  ex  rel.  &c.  v.  Commissioners  of 
Perry  County,  5  Ohio  St.  497,  1856 ;  State  v.  Zanesville,  &c.  Company,  16  Ohio 
St,  308,  construing  the  phrase,  "beneficially  interested." 

In  Iowa,  by  statute,  the  writ  and  proceeding  are  in  the  name  of  the  state 
if  a  public  interest  be  involved,  and  of  the  relator  if  only  a  private  interest 
is  concerned :  Revision  of  1860,  Sec.  3761 ;  State  v.  County  Judge,  2  Iowa, 
280 ;  State  v.  Bailey,  7  Iowa,  390.  And  in  a  matter  of  public  right,  any  citi- 
zen may  be  the  relator  in  an  application  for  a  mandamus:'  State  v.  County 
Judge,  7  Iowa,  186. 

An  act  of  the  legislature  specially  commanded  the  town  council  to  open 
a  certain  alley,  and  it  was  held  that  the  incidental  advantages  which  a  cer- 
tain person  would  derive  from  the  opening  of  the  alley  by  reason  of  the 
location  of  his  property,  did  not  entitle  him  to  a  mandamus  to  compel  the 
performance  of  the  duty  enjoined  by  the  act,  the  relator's  right  being  re- 
garded as  one  held  in  common  with  other  inhabitants  of  the  place:  Heff- 
ner  «.  Commonwealth,  28  Pa.  St.  108, 1857.  But  see  Chap.  XVIII.  on  Streets, 
ante.  So  where  aii  obstruction  to  a  sidewalk  is  no  more  injurious  to  the 
relators  than  to  others,  and  where  there  is  a  remedy  by  indictment,  it  Was 


CH.  XX.]  MANDAMUS. —  APPLICATION  FOR  THE  WRIT.     .  651 

§  696.  When  the  writ  is  sought  to  enforce  individual  rights, 
the  affidavits  must  show  in  the  applicant  or  relator  a  prima 
facie  case,  and  that  he  has  complied  with  every  requisite,  to 
perfect  his  right  to  this  remedy.  Thus,  as  it  is,  in  general, 
necessary  that  the  defendant  should  have,  been  requested  to  do 
that  of  which  performance  is  sought  by  means  of  the  writ  (the 
object  being  that  he  shall  have  the  option  to  do  or  to  refuse 
that  which  is  demanded),  the  affidavits  must  show  the  demand 
and  the  neglect  or  refusal,  or  circumstances,  such  as  unrea- 
sonable delay,  or  neglect  to  discharge  a  public  duty,  which 
clearly  evince  an  intention  not  to  do  the  act  required.1 

§  697.  If  the  affidavits,  information,  or  petition  under 
oath,  show  the  case  to  be  one  in  which  the  writ  lies,  and 
make  out  a  prima  facie  case  for  the  applicant,  a  rule  is  granted 
upon  the  defendants,  that  is,  to  the  persons  to  whom  the  writ 
is  to  be  directed,  to  appear  and  show  cause  why  the  writ  shall 
not  issue.  In  the  practice  in  this  country  the  rule  nisi,  or  no- 
tice, is  often  dispensed  with,  and  an  alternative  writ  granted  ex 

held  that  mandamus  was  not  the  proper  remedy  to  compel  the  city  council 
to  open  streets  and  to  remove  encroachments  thereon :  Beading  v.  Com- 
monwealth, 11  Pa.  St.  196,  1849.    Ante,  Sees.  521,  522. 

Canal  appraisers,  appointed  by  the  state  to  appraise  damages,  and  who, 
in  a  case  within  the  statute,  refuse  to  act,  will  be  compelled  to  proceed  by 
mandamus,  and  estimate  the  relator's  damage,  and  pay  the  same:  Ex  parte 
Jennings,  6  Cow.  518,  case  growing  out  of  the  construction  of  Erie  canal ; 
People  v.  Seymour,  6  Cow.  579 ;  Ex  parte  Rogers,  7  Cow.  526, 1827. 

1  State  v.  Rah  way,  33  N.  J.  (Law)  110,  1868 ;  Tapping  on  Mandamus,  283 ; 
Willc.  357,  pi.  44;  State  v.  Lehre,  7  Rich.  (South  Car.)  322;  Commonwealth 
v.  Allegheny  County,  37  Pa.  St.  237,  1860;  Angell  &  Ames,  Sec.  707,  and 
cases  cited ;  Commonwealth  v.  Allegheny  County,  37  Pa.  St.  277,  291, 1860, 
per  Thompson,  J. ;  People  v.  State  Treasurer,  4  Mich.  27 ;  Stephens'  Nisi 
Prius,  2292,  2318,  2319;  Maddox  v.  Graham,  2  Met.  (Ky.)  56,  70, 1859. 

Further,  as  to  demand  and  refusal,  and  when  necessary :  Tapping,  285,  2,86 ; 
Rex  v.  Canal  Company,  3  Ad.  &  E.  217  ;  ib.  477.  But  an  objection  for  want 
of  demand  may  come  too  late  after  the  merits  of  the  case  have  been  heard; 
Tapping,  287 ;  approved,  State  v.  Lehre,  7  Rich.  322.  The  board  of  super- 
visors of  a  county  were  directed  by  statute  to  meet  at  a  specified  place  and 
time,  and  then  and  there  subscribe  a  specified  sum  to  the  stock  of  a 
railroad  company,  and  it  was  held  that  the  company  must  tender  its  books 
to  the  officers  of  the  county  and  demand  the  subscription,  before  it  could 
apply  for  a  mandamus  to  compel  the  county  to  .subscribe :  Railroad  Com- 
pany v.  Plumas  County,  37  Cal.  354,  1869. 


652  ,  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

parte  in  the  first  instance.1  If,  upon  the  rule  nisi,  or  notice, 
the  defendant  does  what  is  sought,  the  rule  will  he  discharged. 
The  defendant  may  show  for  cause,  by  affidavits,  that  the  case 
is  not  one  in  which  the  writ  lies,  that  there  is  a  specific  and 
adequate  legal  remedy,  or  that  the  relator  or  applicant  has  no 
title  or  right  to  the  writ,  or  that  by  his  neglect  or  misconduct 
he  is  not  entitled  to  the  benefit  of  the  remedy,  or  the  assistance 
of  the  court.  If  after  the  defendant  has  shown  cause  there  re- 
mains a  reasonable  ground  of  right  in  the  applicant,  the  rule 
for  a  mandamus  will  be  made  absolute,  and  an  alternative  writ 
will  issue,  which  must  substantially  follow,  and  not  materially 
vary  from,  the  affidavits,  petition,  or  rule  upon  which  it  is 
founded.2 

Form,  Direction,  and  Service  of  the  Writ. 

§  698.  The  writ  of  mandamus  has  the  usual  formalities  of 
other  writs,  but  no  precise  formula  is  necessary  in  the  language 
to  be  employed  in  framing  it.  It  must  show  with  certainty 
the  duty  to  be  performed,  and  command  those  to  whom  it  is 
directed  to  perform  some  specific  and  definite  act  or  acts.  It 
must  follow  the  rule,  or  affidavits,  or  information  upon  which 
it  is  founded,  must  be  properly  directed,  must  bear  test  in  term 
time,  and,  under  the  practice  at  common  law,  it  must  be  tested 
on  the  very  day  on  which  the  rule  for  the  writ  is  made  abso- 
lute.3 

1  State  v.  Fairchild,  22  Wis.  110, 1867 ;  State  v.  Lean,  9  Wis.  279 ;  Chance 
v.  Temple,  1  Iowa,  179. 

2  3  Blacks.  Com.  110,  111 ;  Willc.  387. 

3  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496,  1859 ;  Bex  v.  Dublin,  1  Stra. 
540 ;  Selwin's  Nisi  Prius,  1061 ;  Sterling's  Case,  1  Sid.  340 ;  Rex  v.  Willis,  7 
Mod.  262;  Rex  v.  Kingston,  8  Mod.  210;  S.  C.  11  Mod.  382;  S.  C.  1  Stra. 
578;  Rex  v.  Wildman,  2  Stra.  880;  Willc.  387;  Rex  v.  Conyers  (teste),  8 
Queen's  B.  981 ;  Stephens'  Nisi  Prius,  2321 ;  Chance  v.  Temple,  1  Iowa,  179, 
where  the  practice  is  fully  stated  by  Jsbell,  J. ;  Price  v.  Harned,  1  Iowa,  473. 

The  duty  required  must  be  specifically  stated,  and  not  in  the  alternative, 
as  that  a  municipal  corporation  pay  a  judgment,  or  issue  its  bonds  in  pay- 
ment, or  levy  a  tax  to  pay  it :  State  v.  Milwaukee,  22  Wis.  397 ;  Rex  v. 
Kingston,  supra;  Tapping,  327.  The  command  must  be  to  perform  the  act, 
and  not  to  command  others  to  perform  it :    Rex  v.  Derby,  2  Salk.  436. 

When  there  is  no  rule  of  law  or  rule  of  court  controlling  it,  the  writ  may 
be  made  returnable  at  the  same  term  it  is  issued,  or  at  the  next  term,  in  the 
discretion  of  the  court :  Harwood  v.  Marshall,  10  Md.  451 ;  Fitzhugh  v. 
Custer,  4  Texas,  391 ;  State  v.  Jones,  1  Ire.  (North  Car.)  129. 


CH.  XX.]       MANDAMUS. FORM,  DIRECTION,  AND  SERVICE.  653 

§  699.  The  direction  of  the  writ  is  one  of  the  most  material 
portions  of  it ;  and  it  must  be  directed  to  the  persons  or  offi- 
cers, or  to  the  corporate  body  legally  bound  to  execute  it,  and 
it  should  be  directed  to  such  only.  The  common  law  conse- 
quence of  a  failure  to  observe  this  rule  is,  that  the  writ  may 
be  either  superseded  or  quashed.  If  a  joint  act  is  to  be  per- 
formed by  two  or  more,  the  writ  must  be  directed  to  all, 
though  only  a  portion  have  refused  to  do  the  act,  and  the  rest 
are  willing.1  The  writ,  when  directed  to  a  corporate  body, 
should  state  the  title  of  the  corporation  with  accuracy,  using 
the  name  prescribed  by  charter  or  statute ;  if  there  be  none 
such,  and  a  name  has  been  acquired  by  reputation,  the  writ 
maybe  directed  accordingly:3  the  effect  of  misnaming  the 
corporate  body  is  that  the  writ  will  be  quashed,  unless  by  the 
law,  or  the  practice  of  the  particular  state,  it  may  be  amended.3 
But  in  some  cases,  there  is  an  option  to  direct  the  writ  either 

1  Tapping  on  Mandamus,  310,  where  an  alphabetical  series  of  the  usual 
directions  of  the  writ  in  England  is  given :  People  i>.  Yates,  40  111.  126 ; 
State  v.  Jones,  1  Ire.  (North  Car.)  129 ;  Rex  v.  Hereford  2  Salk.  701 ;  Buller, 
Nisi  Prius,  204. 

2  Ante,  p.  161  Sec.  119,  p.  162,  Sec.  120 ;  Rex  v.  Smith,  2  M.  &  S.  598 ;  Estwick 
v.  London,  Sty.  43,  32 ;  Carpenter's  Case,  Raym.  439 ;  Tapping,  314 ;  Tave- 
ner's  Case,  Raym.  446. 

3  Mayor  v.  Lord,  9  Wall.  409,  1869;  Tapping  on  Mandamus,  314. 

Amendments:  In  England  the  statute  of  9  Anne,  Chap.  XX.  Sec.  7  ex- 
tended the  statutes  of  jeofails  "to  all  writs  of  mandamus  and  information  in 
the  nature  of  quo  warranto,  and  all  the  proceedings  thereon  for  any  of  the 
matters  in  this  act  mentioned."  As  to  the  extent  of  the  right  in  England  to 
amend  the  writ,  and  the  return :  Willc.  433-437  ;  Commonwealth  v.  Pitts- 
burg, 34  Pa.  St.  496,  515.  In  this  last  case  Strong,  J.,  remarks :  "  Formerly, 
when  the  doctrine  of  amendments  remained  as  at  common  law,  the  court 
would  not  allow  the  writ  of  mandamus  to  be  amended  after  return  filed ; 
but,  as  is  said  by  Tapping,  p.  334,  the  strict  rule  of  the  cornmqn  law  has 
been,  of  late  years,  altogether  departed  from,  the  principle  as  to  amendment 
which  now  obtains  being,  that  it  shall  he  allowed  in  all  cases  when  such  a 
course  will  promote  justice.  Thus,  in  a  late  case,  the  court  ordered  the 
writ  to  be  amended  during  an  argument,  in  order  that  such  argument 
might  proceed  independently  of  such  objection :  Re^si.  Newbury,  1  Queen's 
B.  759.  Further,  as  to  amendments :  Willc.  433 ;  Stephens'  Nisi  Prius,  2324; 
Jones  v.  State  Auditor,  4  Ohio  St.  493  ;  Supervisors  v.  Durant,  9  Wall.  736, 
1869 ;  State  v.  Milwaukee,  22  Wis.  397 ;  Commissioners  v.  People,  38  111.  347 ; 
State  v.  Elwood,  11  Wis.  17 ;  State  v.  Hastings,  10  ib.  518 ;  Springfield  v.  Hamp- 
den, 10  Pick.  59.  Writ  and  information  amendable :  State  v.  Bailey,  7  Iowa, 
390 ;  Chance  v.  Temple,  1  Iowa,  179,  State  v.  Keokuk,  18  Iowa,  388  ;  State  v. 
County  Judge,  12  Iowa,  237. 


654  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

to  that  fart  of  the  corporation  which  alone  has  the  power  to 
execute  it,  and  on  which  alone  the  particular  duty  rests,  or  to 
the  whole  corporation  by  its  corporate  name  or  title.1 

§  700.  "We  have  heretofore  pointed  out  the  difference  be- 
tween an  old  English  municipal  corporation,  consisting  of  in- 
tegral parts  or  different  classes,  and  the  American  municipal 
corporations,2  and  this  distinction  is  to  be  regarded  in  the  ap- 
plication of  the  decisions  of  the  English  courts  respecting  the 
direction  of  writs  of  mandamus.  In  England,  if  the-act  com- 
manded must  be  done  by  the  whole  corporation,  the  writ 
should  be  directed  to  the,  corporation  in  its  corporate  name, 
and  not  by  an  enumeration  of  the  classes  which  compose  the 
corporation,  nor  to  all  the  members  as  individuals.  Thus,  if 
the  corporation  be  styled  "Mayor  and  Commonalty,"  but  con- 
sist of  mayor,  aldermen,  and  burgesses,  the  writ  must  be 
directed  to  the  "Mayor  and  Commonalty  "  (that  being  the  cor- 
porate name),  and  it  must  be  so  directed,  although  the  mayor, 

If  it  appears  to  the  court  that  the  relator  is  entitled  to  a  mandamus  the 
writ  will  not  be  quashed  because  the  petition  or  suggestion  or  affidavits  do 
not  state  that  the  relator  is  without  other  adequate  remedy ;  People  v. 
Hilliard,  29  111.  413. 

1  Tapping  on  Mandamus,  315  317.  The  author  here  refers  to  the  English 
cases  under  the  old  corporations  on  this  subject,  and  observes  that  "  The 
result  of  the  above  cases,  therefore,  is,  that  if  the  writ  be  directed  neither 
to  the  corporation  by  its  corporate  name,  nor  to  those  who  should  execute 
it  by  their  proper  descriptions  [but '  in  terms  extends  the  description  be- 
yond the  part  legally  liable  to  execute  the  writ'],  it  is  clearly  bad,  and  is 
liable  either  to  be  superseded  or  quashed : "  Ib.  317 ;  Eex  v.  Smith  2  M.  &  S. 
598 ;  Rex  v.  Abington,  2  Salk.  700 ;  Eex  v.  Norwich,  1  Stra.  55 ;  Pees  v.  Leeds, 
ib.  640.  "The  writ,"  says  Mr.  Willcock  (Corp.  389,  pi.  135, 137), "  may  be  directed 
in  the  corporate  name,  although  the  act  commanded  is  to  be  done  by  a 
select  body,  without  the  interference  of  the  rest ;  for  their  act  in  such  ca- 
pacity is  the  act  of  the  corporation ; "  "yet,  where  the  act  is  to  be  done  by 
a  select  body  alone,  the  writ  may  be  directed  to  them  alone  in  their  name 
as  a  select  body." 

"If  the  writ  is  directed  to  the  corporation,  it  has  been  held  good.  But  if 
it  be  directed  to  those  who,  by  the  constitution  of  the  corporation,  ought  to 
do  the  act,  without  doubt  it  is  good  also : "    Per  Holt,  C.  J.,  Eex  v.  Abingdon, 

1  Ld.  Eaym.  560.    See,  also,  Eex  v.  Oxford,  6  Ad.  &  E,  349 ;  Eex  v.  Abingdon, 

2  Salk.  700  ;  Eex  v.  Hereford,  1  Ld.  Eaym.  559 ;  Eegina  v.  Ledgard,  1  Ad.  & 
E.  (N.  S.)  616 ;  Eegina  v.  Stamford,  ib.  433. 

*  Ante,  Chap.  III. 


CH.  XX.]       MANDAMUS. FORM,  DIRECTION,  AND  SERVICE.  655' 

who  is  an  integral  part  of  the  corporation,  be  dead.1  Our  mu- 
nicipal corporations  do  not  consist  of  integral  parts  and  distinct 
classes,  but  usually  have  a  specific  name,  and  their  legislative 
powers  are  exercised  by  a  council.  These  circumstances 
influence  the  direction  of  the  rait,  for,  as  we  shall  presently 
see,  the  writ,  in  all  cases  where  the  duty  to  be  performed  rests 
upon  the  council,  may  be  directed  to  the  corporation  by  its 
corporate  name,  or  to  the  officers  composing  the  council  in 
their  official  capacity. 

§  701.  In  this  country,  the  ancient  strictness  in  respect  to 
the  direction  of  the  writ  is  somewhat  modified  by  judicial  de- 
cision and  statutory  enactment.  Where  there  is  a  duty  rest- 
ing on  the  corporation  to  levy  taxes  for  the  benefit  of  its 
bondholders  or  creditors,  the  writ  may  be  directed  to  the  in- 
dividuals, in  their  official  capacity,  composing  the  council  or 
other  body,  whose  duty  it  is  to  make  the  levy  and  who  have 
the  power  to  execute  the  writ;  and  in  such  a  case,  the  writ 
may  also,  we  think,  be  properly  directed  to  the  corporation  by 
its  corporate  name,  and  be  served  upon  the  officers  thereof, 
who  have  the  power,  and  whose  duty  it  is  to  execute  it.2 

1  Eex  v.  Smith,  2  M.  &  S.  598;  Rex  v.  Abingdon,  1  Ld.  Eaym.  560;  Bex  v. 
Plymouth,  1  Barnard.  81 ;  Eex  v.  Cambridge,  4  Burr.  2011.  Under  the 
Municipal  Corporations  Act,  5  and  6  Will.  IV.  Chap.  LXXVI.  ante,  p.  47, 
"the  corporation,"  says  Mr.  Grant,  "acts  by  the  agency  of  the  council,  and, 
therefore,  the  acts  of  the  council  are  the  acts  of  the  corporation.  Hence,  a 
mandamus  ought  to  be  directed  to  the  corporation  by  their  corporate  name, 
though  the  thing  in  it  required  to  be  done  is,  by  the  statute,  to  be  done  by 
the  council:"  Grant  on  Corp.  355,  note;  citing  Eex  v.  Oxford,  6  Ad.  &  E. 
349;  Eex  v.  Gloucester,  3  Bulst.  190;  Eex  v.  Abingdon,  2  Salk.  699 ;  Eex  v. 
Hereford,  ib.  701 ;  Eegina  v.  Ledgard,  1  Q.  B.  620,  621 ;  Mayor,  &c.  v.  Eegina, 
10  Q.  B.  574,  579. 

3  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496,  1859;  The  Mayor  (of  Dav- 
enport) v.  Lord,  9  Wall.  409,  1869;  Maddox  v.  Graham,  2  Met.  (Ky.)  56, 
1859;  Louisville  v.  Kean,  18  B.  Mon.  9,  13,  1857.  In  Commonwealth  v. 
Pittsburg,  above  cited,  the  writ  was  directed,  "To  the  Select  and  Common 
Councils  of  the  City  of  Pittsburg,  composed  of  D.  Fitzsimmons"  and  others 
[stating  the  names  of  all  the  individuals  composing  the  said  bodies,  with- 
out discriminating  which  of  the  persons  named  belonged  to  the  select,  and 
which  to  the  common,  council],  and  the  writ  was  held  to  be  well  directed, 
although  the  corporate  name  of  the  city  was,  "  The  Mayor,  Aldermen,  and 
Citizens  of  Pittsburg."  The  misdirection  of  the  writ  was  set  up  in  the  re- 
turn, and  in  treating  of  the  objection,  Strong,  J.,  delivering  the  opinion  of 


656  MUNICIPAL    COBPORATTONS.  [CH.  XX. 

§  702.     A  distinction  is  to  be  observed  between  a  misdirection,  by- 
being  directed  to  the  wrong  persons,  and  a  direction  to  the 

the  court,  observes :  "  The  next  averment  of  the  return  is,  that  there  is 
no  such  corporation  or  body  politic  known  to  the  law  as  the  City  of 
Pittsburg,  of  whose  councils,  select  or  common,  the  persons  named  in  the 
writ  are  supposed  to  be  members,  but  that  the  corporate  name  is,  '  The 
Mayor,  Aldermen,  and  Citizens  of  Pittsburg.'  The  writ  is  directed  to  the 
select  and  common  councils  of  the  city  of  Pittsburg,  composed  of  D.  Fitz- 
simmons  and  others,  defendants.  It  is  not  directed  to  the  city,  but  to  the 
individuals  who  constitute  the  select  and  common  councils.  The  question 
is  not,  therefore,  whether,  if  an  action  had  been  brought  at  law  against  the 
city  of  Pittsburg,  the  misnomer  might  have  been  pleaded  in  abatement, 
for  it  is  not  the  corporation  which  is  sued.  But  even  if  it  were,  the  mis- 
take is  amendable.  Formerly,  when  the  doctrine  of  amendments  remained 
as  at  common  law,  the  court  would  not  allow  a  writ  of  mandamus  to  be 
amended  after  return  filed ;  but,  as  is  said  by  Tapping,  p.  334,  the  strict 
rule  of  the  common  law  has  been,  of  late  years,  altogether  departed  from; 
the  principle  as  to  amendment,  which  now  obtains,  being  that  it  shall  be  al- 
lowed in  all  cases  when  such  a  course  will  promote  justice.  Thus,  in  a  late 
case,  the  court  ordered  the  writ  to  be  amended  during  an  argument,  in  order 
that  such  argument  might  proceed  independently  of  such  objection  (Rex  ». 
Newbury,  1  Q.  B.  759).  It  needs  no  argument  to  prove  that  justice  would  not 
be  promoted  by  turning  the  relator  out  of  court  because  he  has  described  the 
defendants  as  members  of  the  select  and  common  councils  of  Pittsburg  in- 
stead of  members  of  the  select  and  common  councils  of  '  the  mayor,  alder- 
men, and  citizens  of  Pittsburg.'  Even  the  very  act  which  incorporated  the 
city  more  than  once  denominates  it  the  city  of  Pittsburg.  One  of  our  stat- 
utes of  amendments  authorizes  an  amendment  of  the  record  of  any  action 
in  any  stage  of  the  proceedings  when  it  shall  appear,  by  any  sufficient 
evidence,  that  a  mistake  has  been  made  in  the  Christian  name  or  surname 
of  any  party,  plaintiff  or  defendant.  As  statutes  of  jeofails  are  construed 
liberally,  it  would  seem  to  be  within  the  spirit  of  this  act  to  allow  an 
amendment  of  a  corporate  name  when  a  corporation  is  a  party;  but 
whether  it  would  or  not,  need  not  now  be  decided,  for  the  mandamus  is 
not,  to  the  artificial  being,  known  either  as  the  city  of  Pittsburg  or  as 
'  the  mayor,  aldermen,  and  citizens  of  Pittsburg.'  It  is  not,  therefore,  mis- 
directed. Next,  the  return  avers  that  the  select  and  common  councils  are 
not  integral  parts  of  the  corporation,  but  only  several  and  co-ordinate 
branches  of  the  legislature  thereof,  acting  separately  and  independently  of 
each  other ;  that  the  concurrenqe  of  both  bodies  is  essential  to  the  validity 
of  all  legislative  acts  affecting  the  corporation ;  and  that  the  defendants  are 
without  power,  of  themselves,  to  assess  or  impose  taxes,  or  to  compel  the 
concurrence  of  the  other  branch  pf  said  councils  in  any  act.  "We  do  not 
perceive  that  this  is  any  answer  to  the  mandate  of  the  writ,  and  no  at- 
tempt has  been  made  to  show  us  how  the  fact  averred  is  material.  The 
defendants  are  all  the  members  of  both  branches,  and  if  each  discharges  his 
duty,  there  can  be  no  want  of  concurrence  6f  councils : "  34  Pa.  St.  496, 
supra.    See,  also,  Rex  v.  Tregony  (mayor  of),  8  Mod.  HI. 


CH.  XX.]      MANDAMUS.  —  FORM,  DIRECTION,  AND  SERVICE.  657 

right  persons  by  an  erroneous  name.  In  the  former  case,  the 
writ  may  be  superseded  on  motion,  while  in  the  latter  case  the 
defect  must  be  relied  upon  in  the  return,  and  the  objection  is 
in  the  nature  of  a  plea  in  abatement.1 

§  703.  It  is  advisable  that  writs  to  officers  to  perform  an  offi- 
cial duty  should  be  directed  to  them  in  their  official  names,  as 
"To  the  Mayor  and  Aldermen  of,"  &c,  omitting  the  personal 
names  of  the-  officers,  as  this  course  precludes  questions  which 
might  be  made  arising  from  a  change  of  officers.2  The  writs 
must  be  directed  to  officers  in  their  proper  capacity. 

In  The  Mayor  (of  Davenport)  v.  Lord,  above  cited,  it  appeared  that  the 
municipality  was  incorporated  by  the  name  of  "The  City  of  Davenport," 
and  by  that  name  had  power  "to  sue  and  be  sued  in  all  courts,"  and  that 
the  "  city  council,"  which  exercised  all  the  legislative  powers  of  the  cor- 
poration, and  had  the  sole  power  to  levy  and  collect  taxes,  was  composed 
of  the  mayor  and  aldermen,  and  a  writ  of  mandamus  in  favor  of  a  judg- 
ment creditor  of  the  city,  commanding  the  levy  of  taxes  to  pay  the  judg- 
ment, was  directed  "To  the  Mayor  and  Aldermen"  of  the  city.  The 
objection  was  made  that  the  writ  ought  to  have  been  directed  to  the  city 
by  its  corporate  title,  but  the  objection  was  not  sustained.  The  view  of  the 
Supreme  Court  was,  that  since  the  affairs  of  the  city  were  managed  by  the 
mayor  and  aldermen  composing  the  city  council,  which  had  the  sole  power 
to  levy  and  collect  taxes  and  provide  for  the  payment  of  the  debts  of  the 
corporation,  the  writ  was  well  enough  directed.  The  exact  language  of  the 
courtis:  "The  point  that  the  writ  was  misdirected  is  not  well  taken  — 
the  direction  was  substantially  correct."  There  can,  we  think,  be  little 
doubt  that  the  writ  could  have  been  properly  directed  to  the  corporation 
by  its  corporate  title,  and  as  the  duty  was  a  corporate  one,  though  to  be  per- 
formed by  the  council,  the  direction  of  the  writ  in  such  a  case  to  the  cor- 
poration, by  its  charter  name,  and  service  upon  the  proper  officers,  woul  d 
seem  to  be  an  equally  appropriate  mode. 

1  Rex  v.  Smith,  2  M.  &  S.  598;  Rex  v.  Ipswich,  2  Ld.  Raym.  1239;  S.  C.  2 
Salk.  435;  Rex  v.  Norwich,  1  Stra.  55;  Willc.  388,  pi.  131. 

2  Tapping  on  Mandamus,  315,  317 ;  Louisville  v.  McKean,  18  B.  Mon.  9, 
13, 1857;  infra,  Sec.  712;  State  ».  Elkinton,  1  Vroom  (N.  J.),  335;  Beachy  v. 
Lamkin,  1  Idaho,  48 ;  State  v.  Gates,  22  Wis.  210 ;  People  v.  Bacon,  18  Mich. 
247;  Soutter  v.  Madison,  15  Wis.  30;  Rex  v.  West,  Looe,  3  B.  &.  C.  685; 
Willc.  391,  pi.  140. 

In  Regina  v.  Eye  (mayor  of),  9  A.  &  E.  676,  where  the  mayor  and  assess- 
ors, under  the  English  Municipal  Corporations  Act,  had  expunged  the 
name  of  the  relator  from  the  burgess  role,  and  the  relator,  at  the  next 
term,  obtained  a  rule  for  a  mandamus  to  the  mayor  (the  proper  officer  un- 
der the  act)  to  insert  his  name,  the  court  made  the  rule  absolute,  directing 
the  mandamus  to  the  mayor  generally,  notwithstanding  that  the  mayor,  who 
83 


658  MUNICIPAL  CORPOBATIONS.  [CH.  XX. 

§  704.  The  writ,  as  we  have  seen,  must  be  directed  to  those 
who  are  to  execute  it,  or  do  the  thing  required,  and  it  must  be 
delivered  to,  or  served  upon,  those  who  are  to  make  the  return.1 
Whether  the  writ  be  directed  to  the  corporation  or  the  coun- 
cil,2 the  service  ought,  in  our  opinion,  to  be  made  upon  -the  offi- 
cers who,  under  the  law,  have  the  power  to  do  the  act  com- 
manded, and  against  whom  an  attachment  to  enforce  obedi- 
ence should  issue. 

had  expunged  the  name,  had  ceased  to  be  mayor  before  the  rule  nisi  was 
obtained,  that  no  application  had  been  made  to  the  mayor  then  in  office, 
and  that  the  year  to  which  the  burgess  list  belonged  had  expired  before 
making  the  rule  absolute.  In  one  case  in  England,  where  it  was  doubtful 
whether  the  last  mayor  had  power  to  hold  over,  the  court  ordered  that  the 
writ  should  be  directed  to  the  late  mayor,  without  specifying  his  name: 
Willc.  389,  pi.  133. 

1  Bex  v.  Hereford,  2  Salk.  701 ;  Rex  v.  Derby,  ib.  436 ;  Pees  v.  Leeds,  1 
Stra.  640. 

2  Supra,  Sees.  699-701. 

On  this  subject  some  decisions  have  been  made  in  England  which  seem 
to  be  inapplicable,  at  least  in  their  full  extent,  to  our  municipal  corpora- 
tions. Thus,  it  is  held,  that  where  a  mandamus  is  directed  to  the  "mayor, 
&c. "  the  mayor  alone  can  make  return,  and  the  other  integral  parts  of  the 
corporation  cannot  disavow  it.  The  reason  assigned  is,  that  the  court  can- 
not refuse  the  mayor's  return,  he  being  the  principal  officer  to  whom  the 
writ  is  directed  and  to  whom  it  is  actually  delivered,  and  all  the  court  can 
do  is  to  compel  a  return,  and  if  the  mayor  makes  a  return  contrary  to  the 
votes  of  the  majority  concerned  it  is  at  his  peril,  and  he  may  be  punished 
by  information  in  the  King's  Bench :  Rex  v.  Abingdon,  2  Salk.  431 ;  ib. 
699 ;  Stephens'  Nisi  Prius,  23, 26.  Accordingly,  it  has  also  been  held  that  if  the 
writ  be  directed  to  a  corporation,  it  ought  to  be  served  upon  the  mayor :  Eex 
v.  Exeter,  12  Mod.  251.  So,  on  a  mandamus  to  elect  a  clerk,  it  was  decided 
that  the  writ  should  be  delivered  to  the  mayor,  as  the  most  visible  part  of 
the  corporation,  notwithstanding  the  power  of  election  was  in  the  common 
council :  Regina  v.  Chapman,  6  Mod.  152.  [See  State  v.  Milwaukee,  22  Wis. 
396,  397.]  In  another  case  it  was  held  that  personal  service  on  the  town 
clerk  of  a  peremptory  writ  to  the  corporation  was  sufficient  to  found  an  ap- 
plication for  an  attachment :  Rex  v.  Fowey,  4  D.  &  R.  614.  It  seems  that 
an  attachment  may  be  granted  against  a  mayor,  on  affidavits  that  the  writ 
has  been  left  at  his  house,  he  having  kept  out  of  the  way  to  avoid  it :  Rex 
«.  Topley,  12  Mod.  312 ;  Willc.  450.  At  common  law  the  return  to  a  writ  of 
■mandamus  to  a  corporation  being  an  act  to  be  entered  of  record,  it  need  not 
be  under  the  seal  of  the  corporation,  nor  signed  by  the  head  or  other  offi- 
cer of  the  corporation,  for  at  common  law  no  officers  are  obliged  to  sign 
their  returns :  Rex  «.  Exeter,  1  Ld.  Raym.  223 ;  Rex  v.  Clarke,  2  ib.  848 ; 
ib.  849 ;  Rex  v.  Wigan,  3  Burr.  1645 ;  Grant  on  Corp.  63,  228,  229. 


CH.  XX.J  MANDAMUS. — RETURN,  AND  PROCEEDINGS.  659 

The  Return,  and  Subsequent  Proceedings. 

§  705.  The  return  to  the  alternative  writ  must  be  made  by 
the  corporation,  body,  officers,  or  persons  to  whom  the  writ  is 
directed ;  must  state  facts  clearly,  positively,  and  without  am- 
biguity or  by  way  of  argument ;  if  it  traverses  the  facts  stated 
in  the  writ  it  must  deny  or  answer  all  that  are  material,  or  it 
may  aver,  in  accordance  with  the  rules  of  pleading,  other  facts 
in  avoidance,  and  such  facts  "must  also  be  clearly  and  specific- 
ally set  forth  in  the  return  with  .sufficient  certainty,  and  not 
argumentatively,  inferentially,  or  evasively,  so  that  the  court 
may  see  at  once  that  such  facts,  if  established  or  admitted,  are 
sufficient  as  the  alternative  for  obedience  to  the  writ." '  The 
return  need  not  be  single,  but  may  state  several  distinct  grounds 
in  answer  to  the  writ,  and  it  is  enough  if  any  one  of  them  be 
sufficient,  that  is,  disclose  legal  reasons  why  the  act  commanded 
by  the  writ  should  not  be  performed.2 

§  706.  Under  the  statute  of  Anne,  or  similar  statutes  adopted 
or  enacted  in  most  of  the  states,  or  by  the  course  of  practice 
therein,  the  return,  if  false  in  fact,  is  not  conclusive  in  the  man- 
In.  this  country  the  mode  of  service  is  usually  prescribed  by  statute : 
Haveyreyer  ».  Supervisors,  22  Wis.  396,  construing  the  statute  of  Wisconsin 
to  require  the  board  of  supervisors  to  be  served  by  leaving  the  original 
writ  of  mandamus  with  the  chairman,  and  a  copy  with  each  of  the  supervis- 
ors. In  New  Jersey,  see  State  v.  Elkinton,  1  Vroom,  335.  Proper  mode  of 
making  return  by  county  justices  or  supervisors :  Lander  v.  McMillan,  8 
Jones  (North  Car.)  Law,  174  ;  McCoy  v.  Harnett,  4  ib.  180 ;  People  v.  San 
Francisco,  27  Cal.  655. 

1  Commonwealth  v.  Allegheny  County,  37  Pa.  St.  277,  279, 1860,  per  Thomp- 
son, J.,  where  the  principle  is  well  illustrated  and  applied:  People  v.  Baker, 
35  Barb.  105 ;  Willc.  401-409 ;  Loute  v.  Allegheny  County,  10  Pittsburg  Legal 
Journal,  241 ;  Pollock  v.  Lawrence,  7  ib.  373  ;  Commissioners  v.  Tarver,  21 
Ala.  661 ;  Commonwealth  v.  Pittsburg,  34  Pa.  St.  496, 1859 ;  Soutter  v.  Madison  , 
15  Wis.  30;  Grant  ori  Corp.  228-240.  The  mandatory  part  of  the  alterna- 
tive writ,  if  certain,  may  be  general,  but  the  return  must  be  minute  in  stat- 
ing facts,  showing  why  the  party  did  not  do  the  act  required  :  Regina  v. 
Southampton,  1  Ellis,  B.  &  S.  5.  Equitable  defence  to  the  demands  of  the 
relator,  and  mode  of  asserting  it :  Neuse  River  Co.  v.  Commissioners,  6 
Jones  (North  Car.)  Law,  204. 

2  Rex  v.  Norwich,  2  Ld.  Raym.  1244;  S.  C.  2  Salk.  436;  Rex  w.Pomfret,  10 
Mod.  68  ;  Rex  v.  Cambridge,  2  T.  R.  461 ;  Rex.  v.  York  6  id.  495 ;  Wright  v. 
Fawcett,  4  Burr.  2044. 


660  MUNICIPAL    CORPORATIONS.  [CH.  XX. 

damus  proceeding,  and  the  relator  or  prosecutor  is  not  driven 
as  at  common  law  to  his  action  on  the  case  for  a  false  return, 
but  may  contest  the  truth  of  the  return.1  It  may  be  stated  to 
generally  true  in  this  country,  that  upon  service  of  the  alterna- 
tive writ  the  respondent,  or  party  to  whom  it  is  directed,  may 
either:  1,  obey  the  command  of  the  writ  and  show  that  fact; 
or  2,  he  may  object  to  the  writ  for 'defects  therein,  and  move 
to  quash  or  supersede  the  same ;  or  3,  he  may  demur  to  the 
writ ;  or  4,  traverse  in  the  return  the  facts  set  forth  in  the 
writ ;  or  5,  aver  in  the  return  other  facts  by  way  of  confession 
and  avoidance  of  the  facts  stated  in  the  writ.2  And  the  ques- 
tions of  law  and  the  issues  of  facts  thus  presented  will  be  dis- 
posed of  according  to  the  statutes  and  the  practice  of  the  court.3 

Peremptory  Writ. 

§  707.  If  the  return  to  the  alternative  writ  be  disallowed 
as  insufficient  in  law,  or  if  the  facts  averred  in  the  return  be 
found  and  adjudged  untrue,  a  peremptory  writ  will  be  issued, 
which,  as  its  name  implies,  requires  to  be  obeyed,  and  it  can 
not  be  disobeyed  on  any  grounds  which  might  have  been  urged 
in  resisting  the  application  for  the  writ.4  If  the  defendants 
have  appeared  to  a  rule  or  notioe  of  an  application  for  a  man- 
damus, and  have  been  heard,  and  there  is  no  controversy  in 

1  Maddox  v.  Graham,  2  Met.  (Ky.)  56,  69, 1859  ;  Angell  &  Ames,  Corp, 
Sees.  727,  728  ;  People  «.  Commissioners,  6  Wend.  559 ;  People  v.  Finger,  24 
Barb.  341. 

2  Commonwealth  v.  Allegheny  County,  37,  Pa.  St.  277,  279;  Cpmmon^ 
wealth  v.  Allegheny  County,  ib.  237,  opinion  of  Woodward,  J. ;  Tapping  on 
Mandamus,  347  ;  Tarver  v.  Commissioners,  17  Ala.  527 ;  Commonwealth  v, 
Lyndall,  2  Brewster  (Pa.),  425  ;  Ib.  44].  ;  Dane  v.  Derby,  54  Maine  95.  The 
Statute  of  9  Anne,  Chap.  XX.  is  not  in  force  in  Alabama :  Commissioners 
v.  Tarver,  21  Ala.  661.    Nor  in  Maryland :  Harwood  v.  Marshall,  10  Mel.  451. 

3  Silverthorne  v.  Railroad  Company,  33  New  Jersey,  Law,  173,  The  prose- 
cutor or  relator  may  demur  to  the  return :  Ib.  Or  plead  to,  and  contro* 
vert,  the  facts  stated  therein :  Maddox  v.  Graham,  2  Met.  (Ky.)  56,  68, 
1859 ;  People  v.  Metropolitan  Police  Board,  26  N.  Y.  316 ;  State  v.  Jones,  1Q 
Iowa,  65;  Fowler  v.  Pierce,  2  Cal.  165;  9  Anne,  Chap  XX.  Sees.  I,  2; 
Grant  on  Corp.  228-240. 

1  Stevens'  Case,  T.  Raym.  432  ;  Rex.  v.  Norwich,  2  Ld.  Raym.  1245 ;  Peo- 
ple v.  Seymour,  6  Cow,  579 ;  Commonwealth  «,  Pittsburg,  34  Pa.  St.  496, 
1859;  Weber  v-  Zimmerman,  23  Md,  45;  People  v.  Supervisors,  28  N.  Y.  112^ 


CH.  XX.]     MANDAMUS. —  PEREMPTORY  WRIT. —  ATTACHMENT.         661 

respect  to  the  facts,  and  the  right  of  the  relator  is  clear,  a 
peremptory  writ  may,  in  the  discretion  of  the  court,  he  issued 
in  the  first  instance.1  Thus,  where  a  specific  duty,  e.  g.  the 
levy  of  a  special  tax,  required  to  be  performed  by  public  offi- 
cers at  a  prescribed  time,  is  omitted  to  be  performed  without 
a  reason,  or  for  a  reason  merely  colorable,  a  peremptory  man- 
damus, without  a  previous  alternative,  may  be  issued  in  the 
first  instance,  if  the  defendants  have  previously  appeared  to  a 
notice  or  rule  commanding  the  duty  to  be  performed  forthwith.2 

§  708.  Although  the  return  is  insufficient,  yet  if  upon  the 
whole  case  it  clearly  appears  that  the  relator  is  not  entitled  to 
the  advantage  which  the  peremptory  writ  would  give  him,  the 
court  will  not  issue  it.3  If  issued,  it  may,  on  motion,  be  set 
aside,  on  proof  that  it  was  unfairly  or  improperly  obtained,  or 
commands  the  performance  of  an  illegal  act.4  If  when  being 
issued  it  is  not  fully  and  effectually  obeyed,  the  relator  may 
oppose  the  motion  to  file  the  return.5 

Attachment. 

§  709.  Obedience  to  the  peremptory  writ  is  enforced  by 
attaching  the  persons  guilty  of  the  disobedience  for  contempt.6 
If  a  corporation  makes  no  return  to  a  writ  duly  issued  and 

1  Knox  County  v.  Aspinwall,  24  How.  376,  1860 ;  Ex  parte  Jennings,  6 
Cow.  229 ;  Ex  parte  Rogers,  7  Cow.  526 ;  State  v.  Elkinton,  1  Vroom  (ST.  J.), 
335 ;  Harkins  v.  Sencerbox,  2  Minn.  344 ;  Justices,  &c.  o.  Turpike  Company, 
11  P>.  Mon,  143  ;  Board,  &c.  v.  Grant,  9  Sm.  &  Mar.  77.  So,  if  no  return  be 
made  to  an  alternative  writ,  the  court,  instead  of  proceeding  by  attach- 
ment, may  direct  the  peremptory  writ  to  issue  :  State  v.  Jones,  1  Ire.  129  ; 
People  v.  Pearson,  3  Scam.  (111.)  271. 

2  Knox  County  v.  Aspinwall,  24  How.  (U.  S.)  376, 1860. 

3  Willc.  444,  pi.  303,  citing  Rex  v.  Campion,  1  Sid.  14  ;  Rex  v.  Mayor,  <Stc. 
Cowp.  523  ;  Rex  v.  Griffiths,  5  B.  &  Aid.  735  ;  Supra,  Sec.  683. 

4  People  v.  Everett,  1  Caines  (N.  Y.),  8;  Weber  v.  Zimmerman,  23  Md. 
45  ;  State  v.  County  Judge,  12  Iowa,  237. 

8  Rex  v.  Ipswich,  2  Ld.  Raym.  1283. 

0  Commonwealth  v.  Taylor,  36  Pa.  St.  263,  which  contains  Q,  J.  Lovme's 
address  on  behalf  of  the  Supreme  Court  of  Pennsylvania  to  th,e  members 
of  the  municipal  council  of  Pittsburg,  attached  for  contempt  fq,r  no,t  levying, 
as  commanded,  a  tax  to  pay  creditors :  Loute  v.  Allegheny  County,  10 
Pittsburg  Legal  Journal,  241 ;  Angell  &  Ames,  Sec.  730 ;  WiUc.  4$$. 


662  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

served,  the  attachment  issues  against  the  individuals  guilty  of 
the  contempt  in  their  natural  capacity.1  If  the  writ  he  directed 
to  several  persons  in  their  natural  capacities,  unless  all  join  in 
the  return,  the  attachment  must  go  against  all,  though  such  as 
were  willing  to  do  the  act  commanded  will  not  he  punished. 
But  where  the  writ  is  directed  to  a  corporation  hy  name,  the 
attachment  should  issue  against  the  guilty  only,  not  against, 
those  who  do  all  in  their  power  to  ohey  the  command  of  the 
writ.2 

§  710.  The  application  for  an  attachment  is  by  motion  for  a 
rule  nisi,  founded  upon  affidavits,  which  gives  the  defendant 
an  opportunity  to  show  cause.3  But  the  rule  is  here  often  dis- 
pensed with,  and  upon  a  clear  showing  that  the  writ  has  been 
served,  and  that  the  disobedience  is  wilful,  or  the  contempt 
gross,  an  attachment  may  be  issued  at  once. 

§  711.  The  defendants  cannot,  on  being  attached  for  diso^ 
bedience  to  a  peremptory  mandamus,  issued  by  a  federal  court, 
excuse  or  justify  such  disobedience  by  showing  that  they  have 
since  beep  enjoined  by  a  state  court  from  doing  the  act  com- 
manded by  the  former  court.4 

1  Mills'  Case,  T.  Rayrn.  152. 

2  Bailiffs  of  Bridgenorth,  2  Stra.  808 ;  Rex  v.  Salop,  Bullers'  Nisi  Prius, 
198,  201  (6.)  ;  New  Sarum,  Comb.  327. 

3  Tidd's  Prac.  484 ;  Chaunt  o.  Smart,  1  B.  &  P.  477.  Under  the  practice 
at  common  law,  an  attachment  is  not  granted  for  not  making  a  return  to  the 
peremptory  writ  on  the  day  assigned,  but  it  is  granted  after  a  peremptory 
rule  to  return  the  writ:  Rex  v.  Fowey,  5  D.  &  R.  614  ;  Coventry's  Case,  2 
Salk.  429 ;  Willc.  449. 

If  there  has  been  no  service  of  the  writ  according  to  law,  an  attachment  for 
contempt  will  not  he  issued :    State  v.  Supervisors,  &c,  22  "Wis.  396,  1867. 

If  a  "town  council"  to  which  a  mandamus  is  directed  adjourn  the  corpo- 
rate assembly  to  prevent  a  return  being  made,  the  members  will  be  pun- 
ishable for  contempt :    Regina  v.  Heathcote,  10  Mod.  56. 

4  R}ggs  v.  Johnson  County,  6  Wall.  166 ;  Lansing  v.  County  Treasurer,  1 
Dillon,  C.  C.  522  ;  Supervisors  v.  Durant,  9  Wall.  415 ;  The  Mayor  v.  Lord, 
ib.  409.  A  town  treasurer,  who  has  collected  the  money  due  a  judgment 
creditor,  cannot  be  compelled  hy  mandamus  to  pay  it  to  the  creditor  while 
enjoined  at  the  suit  of  another :    State  v.  Kispert,  21  Wis.  387. 


CH.  XX.J  JUDGMENT  IN  MANDAMUS.  663 

Judgment  in  Mandamus. 

§  712.  A  change  in  the  membership  of  a  municipal  council 
pending  proceedings  in  mandamus  against  the  council  does  not 
abate  the  proceedings;  and  where  such  a  change  occurred, 
and  the  new  members  were  made  parties,  and  afterwards  a 
peremptory  writ  ordered,  this  was  regarded  as  in  effect  a 
judgment  against  the  corporation,  and  binding  upon  the  coun- 
cilmen  in  office  at  the  time  of  its  rendition,  and  whose  duty  it 
was  to  execute  it.1  But  a  judgment  in  mandamus,  ordering  the 
performance  of  an  official  duty,  by  one  who  had  ceased  to  be 
an  officer  before  the  judgment  was  entered^  is  void,  and  does 
not  bind  his  successor  if  the  latter  be  not  made  a  party  to  the 
proceeding  and  have  due  notice  thereof  and  opportunity  to 
be  heard.2  Strangers  are  neither  bound,  nor  estopped,  by  a 
peremptory  writ  of  mandamus? 

1  Maddox  v.  Graham,  2  Met.  (Ky.)  56,  63,  71,  1859;  Louisville  v.  McKean, 
18  B.  Mon.  9,  13,  1857.  In  the  last  Case,  the  city  of  Louisville  Was  held  en- 
titled to  prosecute  an  appeal  in  its  name  from  a  proceeding  in  mandamus 
against  the  mayor  and  the  members  of  the  council  of  the  city.  In  thus  hold- 
ing, the  court,  by  Simpson,  J.,  remarks :  "  The  act  they  [the  mayor  and  council] 
were  required  to  perform  was  a  corporate  act.  The1  judgment  against  them 
should,  therefore,  be  regarded  as  having  been  rendered  against  them  in 
their  corporate  character.  Indeed,  the  proceeding  should  properly  have 
been  ugainst  the  corporation,  or  against  the  general  council,  as  that  body 
represented  the  corporation.  If  it  should  be  regarded  as  a  proceeding 
against  the  mayor  and  general  council  individually,  the  judgment  might 
have  been  unavailing  if  they  had  not  been  in  office  at  the  time  it  was  ren- 
dered ;  and  might,  therefore,  have  been  made  ineffectual  by  their  resignation 
during  the  pendency  of  the  motion.  But  regarding  it  as  a  proceeding  against 
the  corporation,  it  would  be  obligatory  on  the  members  of  the  general 
council  in  office  at  the  time  of  its  rendition ;  and  it  would  not  assume  the 
character  of  a  proceeding  against  individuals,  unless  it  became  necessary 
to  issue  an  attachment  for  the  enforcement  of  the  judgment.  Therefore, 
the  appeal  is  properly  prosecuted  in  the  name  of  the  city."  In  Soutter  v. 
Madison,  15  Wis.  30,  it  was  held  that  if  the  mayor  and  part  of  the  council 
go  out  of  office  after  the  alternative  writ  is  served,  their  duties  devolve  on 
their  successors,  and  that  the  peremptory  writ  may  be  directed  to  the 
mayor  and  council  generally. 

2  The  Secretary  of  the  Interior  v.  McGarrahan,  9  Wall.  298,  313,  1869.  In 
such  a  case  the  officer  is  treated  as  the  real  defendant,  and  notice  to  him, 
actual  or  constructive,  is  essential  to  jurisdiction :  Per  Clifford,  J.,  ib.  See 
Regina  v.  Eye  (mayor  of),  9  A.  &  E.  676;  State  v.  Gates,  22  Wis.  210 ;  Beachy 
v.  Lamkin,  1  Idaho,  48  ;  Soutter  v.  Madison,  15  Wis.  30 ;  State  v.  Elkinton, 
1  Vroom  (JST.  J.),  335. 

3  Regina  v.  Heathcote,  10  Mod.  56 ;  S.  C.  Fort.  290 ;  Tapping,  403. 


664  MUNICIPAL   CORPORATIONS.  [CH.  XX. 

Error  and  Appeal  from  Judgment  in  Mandamus — Supersedeas:  State  v. 
Judge,  &c.  21  La.  An.  741 ;  United  States  v.  Addison,  22  How.  174;  The  Sec- 
retary i>.  McGarrahan,  supra;  Louisville  v.  McKean,  18  B.  Mon.  9,  13; 
Supra,  Sec.  703 ;  E^  parte  Morris,  11  Gratt.  (Va.)  292,  1854 ;  Insurance  Com- 
pany v.  Wheelwright,  7  Wheat.  534 ;  Tapping,  397,  398,  and  cases  cited ; 
Moses,  Chap.  XXVIII. ;  Griffin  v.  Steele,  1  Edm.  (N.  Y.)  Sel.  Cas.  505 ;  Ex 
parte  Milwaukee  Railroad  Company,  5  Wall.  188 ;  People  v.  Supervisors,  28 
N.  Y.  112 ;  Chance  v.  Temple,  1  Iowa,  179  ;  State  v.  County  Judge,  7  Iowa, 
186  ;  Harwood  «.  Marshall,  9  Md.  83;  Blackerby  v.  People,  5  Gilm.  (111.) 
266 ;  Supra,  Sec.  682,  note.  In  England  see  Act,  6  and  7  Vict.  Chap.  LXVII. 
printed  in  Eawlinson,  Corp.  Appendix,  730 ;  15  and  16  Vict.  Chap,  LXXVL 


CH.  XXI.J  QUO  WARRANTO.  665 


CHAPTEK  XXI. 

Quo  Warranto. 

§  713.  In  England,  the  ancient  method  of  proceeding 
against  those  who  exercised  any  public  franchise  without  the 
King's  grant,  or  contrary  thereto,  was  by  the  writ  of  quo  war- 
ranto, which  is  the  foundation  of  the  modern,  more  conveni- 
ent, and  improved  remedy,  by  information  in  the  nature  of  a 
quo  warranto.1  In  the  ninth  year  of  the  reign  of  Queen  Anne, 
the  famous  statute  on  the  subject  of  informations  in  the  nature 
of  a  quo  warranto,  in  cases  of  usurpations  or  intrusions  into  the 
offices  and  franchises  of  municipal  corporations,  was  passed.  In 
substance,  this  statute  has  been  very  generally  re-enacted  in 
this  country.2  It  may  be  considered  as  settled,  that  where  any 
public  trust  or  franchise  is  exercised  without  authority,  an  informa- 
tion will  be  granted  for  usurping  it,  whether  it  be  a  prior 

1  Willc.  453;  Selwin's  Nisi  Prim,  872 ;  2  Kyd  on  Corp.  395;  Angell  & 
Ames,  Chap.  XXI.;  Buller's  Nisi  Prius,  210;  3  Blackst.  Com.  262;  Stephens' 
Nisi  Prius,  2429. 

2  People  v.  Thompson,  16  Wend.  655,  1837.  The  cases  in  which  quo  war- 
ranto lies,  and  the  nature  and  mode  of  proceeding,  pleading,  practice,  and 
judgment  will  he  found  discussed,  and  the  authorities  collected  by  the 
reporter,  in  a  valuable  note  to  The  People  v.  Richardson,  4  Cow.  (N.  Y.)  100 
-123.  Infra,  Sec.  726.  See,  also,  Stephens'  Nisi  Prius,  2430-2480.  In  South 
Carolina,  the  statute  of  9  Anne,  Chap.  XX,  is  in  force,  and  usurpations  by 
public  corporations  of  unauthorized  powers  may  be  tried  upon  informa- 
tion: State  v.  Charleston,  1  Const.  R,  36,  1817;  approving,  Rex  v.  Mayor 
of  Genterden,  8  Mod.  114.  See,  also,  State  v,  Commissioners,  1  Const, 
(South  Car.)  R.  1817,  55,  62.  In  Louisiana:  Reynolds  v.  Baldwin,  1  La.  An. 
162.  In  Pennsylvania :  Commonwealth  v.  Jones,  12  Pa.  St.  365, 1849 ;  Com- 
monwealth v.  Central  Passenger  Railway  Company,  52  Pa.  St.  506 ;  9  Anne, 
Chap.  XX.  now  in  force ;  Commonwealth  v ,  Cluley,  56  Pa.  St.  270, 1867.  In 
New  York :  People  v.  Utica  Insurance  Company,  15  Johns.  358 ;  Attorney 
General  v.  Same,  2  Johns.  Oh.  371 ;  4  Cow,  101, 122, 133.  In  Massachusetts  : 
Goddard  ».  Smithett,  3  Gray,  116.  In  New  Jersey :  State  v.  Turnpike  Com^ 
pany,  1  N.  J.  9 ;  State  v-  Tolan,  33  N.  J,  (Law)  1«5, 1868.  In  Iowa :  Cochran 
v.  McCleary,  22  Iowa,  75, 1867.  In  Ohio :  State  v.  Cincinnati  Gas  Company, 
18  Ohio  St.  262.  In  Maine :  9  Anne,  Chap.  20,  not  in  force ;  Dane  v.  Derby, 
54  Maine,  95, 1866.    Practice  in  that  state:  lb. 

84 


MUNICIPAL   CORPORATIONS.  [CH.  XXI. 

franchise  of  the  crown  or  one  exercised  under  an  act  of  par- 
liament. Thus,  where  by  private  act  of  parliament  for  enlarg- 
ing and  regulating  a  port,  several  persons  were  appointed 
trustees,  and  a  particular  method  of  filling  vacancies  was  pre- 
scribed, and  the  defendants  took  upon  themselves  to  act  as 
trustees  without  such  an  election  as  the  statute  required,  leave 
was  given  to  file  an  information  in  the  nature  of  a  quo  warranto 
against  them.1 

§  714.  Under  the  legislation  and  practice  in  the  different 
states  in  this  country,  an  information  in  the  nature  of  a  quo 
warranto  is  the  appropriate  remedy  both  for  the  usurpation  of 
municipal  and  other  public  offices,  and  for  the  usurpation  of  a 
public  franchise.2  Thus  this  remedy  will  lie  to  test  the  right  of 
a  member  of  a  city  council  to  a  seat  in  that  body,3  or  to  test 
the  right  of  a  person  to  preside  over  or  to  vote  in  a  meeting  of 
a  municipal  body.4  In  such  cases,  ordinarily,  equity  has  no 
jurisdiction.6 

1  Eex  v.  Nicholson,  1  Stra.  299 ;  see,  also,  Eex  v.  Bedford,  1  Barnard. 
242,  280;  People  v.  Utica  Insurance  Company,  15  Johns.  358,  388, 1818;  Bul- 
ler's  Nisi  Prim,  210.  Various  instances  in  which  quo  warranto  informations, 
in  England,  have  been  exhibited  against  a  corporate  officer,  to  show  by 
what  authority  he  held  a  franchise  which  he  assumed  to  exercise  in  his 
official  capacity,  are  collected  and  stated  in  3  Stephens'  Nisi  Prius,  2442, 
2443. 

2  Eeynolds  v.  Baldwin,  1  La.  An.  162,  1846 ;  followed,  Cochran  v.  Mc- 
Cleary,  22  Iowa,  75, 1867.  Ante,  p.  241,  Sees.  210,  213,  and  cases  cited,  Sec. 
680;  Rex  v.  Williams,  1  Burr.  407;  S.  C.  2  Kenyon,  75;  State  v.  Deliesseline, 
1  McCord  (South  Car.)  52, 1821. 

8  Commonwealth  v.  Meeser,  44  Pa.  St.  341 ;  S.  C.  Brightley's  Election 
Cases,  659. 

*  Reynolds  v.  Baldwin,  1  La.  An.  162,  1846;  Cochran  v.  McCleary,  22 
Iowa,  75, 1867.    Ante,  p.  241,  Sec.  210. 

5  Ante,  p.  241 ,  Sec.  210.  But  see,  ante,  p.  243,  Sec.  213 ;  People  v.  Galesburg, 
48  111.  485,  1868 ;  Markle  v.  Wright,  13  Ind.  548, 1859 ;  Hagner  v.  Heyberger, 
7  Watts  &  Serg.  104, 1844. 

The  holding  of  an  election  will  not  be  enjoined,  since  quo  warranto  is  a 
complete  remedy :  People  v.  Galesburg,  48  111.  485, 1868.  Where  the  remedy 
at  law  is  inadequate,  a  Court  of  Equity  may,  for  that  reason,  take  jurisdic- 
tion: lb.  obiter.  Ante,  Sec.  213.  The  governor  will  not  be  restrained  from 
granting  a  commission  to  an  officer  Who  has  been  improperly  elected,  any 
more  than  the  courts  would  restrain  the  legislature  from  passing  an  uncon- 
stitutional act :  Grier  v.  Taylor,  Governor,  4  McCord  (South  Car.),  206, 1827, 
per  Bay,  J. ;  Chicago  v.  Evans,  24  111.  52, 1860 ;  Smith  v.  McCarthy,  56  Pa.  St 
359. 


OH.  XXI.]  QUO  WARRANTO.  667 

§  715.  In  a  previous  chapter  we  have  had  occasion  to  con- 
sider when  statutes  providing  special  proceedings  with  respect 
to  municipal  elections  will  or  will  not  be  held  to  oust  the  revisory 
or  superintending  jurisdiction  of  the  Superior  Courts  over  such  pro- 
ceedings and  elections,  and  we  may  here  repeat  that  this  salu- 
tary jurisdiction  should  not  be  deemed  to  be  taken  away,  ex- 
cept in  cases  where  the  legislative  intent  to  this  effect  is  plainly 
manifest.1 

§  716.  "We  have  before  seen  that  it  is  the  doctrine  of  the 
English  law,  quite  generally  adopted  in  this  country,  that 
where  a  person  is  in  the  actual  possession  of  an  office  under  an  election 
or  a  commission,  and  is  thus  exercising  its  duties  under  color  of 
right,  that  the  validity  of  his  election  or  commission  cannot,  in 
general,  be  tried  or  tested  on  a  mandamus  to  admit  another, 
but  only  by  an  information  in  the  nature  of  a  quo  warranto.2 
The  certificate  of  election  of  an  officer,  or  his  commission, 
coming  from  the  proper  source,  is  prima  facie  evidence  in  favor 

1  Ante,  p.  179,  Sec.  139,  et  seq. 

The  cases  discover  some  conflict  of  opinion  in  respect  to  when  a  special 
mode  of  Contesting  elections  will  exclude  the  mode  by  quo  warranto.  See; 
on  this  subject,  State  ».  Marlow,  15  Ohio  St.  114, 1864 ;  Commonwealth  v. 
Garrigues,  28  Pa.  St.  9  ;  Commonwealth  1).  Baxter,  35  Pa.  St.  263  ;  Common- 
wealth v.  Leech,  44  Pa.  St.  332  ;  Commonwealth  v.  Meeser,  44  Pa.  St.  341; 
S.  C.  Brightley's  Election  Cases,  659,  663,  which  the  learned  editor  of  the 
volume  last  cited  regards  as  in  conflict  with  the  Commonwealth  v.  Mc- 
Closkey,  2  Eawle  (Pa.),  369;  two  judges  dissenting;  approved,  People  «. 
Holden,  28  Cal.  123.  Ante,  Sees.  141, 142, 143, 144;  Steele  v.  Martin,  6  Kan- 
sas, 430.    Post,  Sec.  740. 

2  Ante,  Sec.  141  and  note  ;  Sees.  674,  678-682 ;  Regina  v.  Leeds,  11  A.  &  E. 
612 ;  Regina  v.  Derby,  7  A  &  E.  419  ;  Ohio  v.  Moflitt,  5  Ohio,  358 ;  State  v. 
Choate,  11  Ohio,  511 ;  State  0.  Bryce,  7  Ohio,  part  2,  p.  82 ;  People  v.  New 
York,  3  Johns.  Cas.  79, 1802  {mandamus  to  admit  aldermen).  In  the  case  last 
cited,  the  reason  for  the  rule  is  thus  stated  by  the  court :  "Where  the  oflice 
is  already  filled  by  a  person  who  has  been  admitted  and  sworn,  and  is  in 
by  color  of  right,  a  mandamus  is  never  issued  to  admit  another  person  ;  be- 
cause the  corporation,  being  a  third  party,  may  admit  or  not,  at  pleasure, 
and  the  rights  of  the  party  in  oflice  may  be  injured,  without  his  having  an 
opportunity  to  make  defence.  The  proper  remedy,  in  the  first  instance,  is  . 
by  information  in  the  nature  of  a  quo  warranto,  by  which  the  rights  of  the 
parties  may  be  tried  :"  3  Johns.  Cas.  79,  80.  See,  also,  People  v.  Sweeting, 
2  Johns.  184 ;  People  v.  Van  Slyck,  4  Cow.  297,  323  ;  Stephens'  Nisi  Prius, 
2445,  et  seq.  where  the  validity  and  invalidity  of  corporate  elections  are 
fully  treated. 


668  MUNICIPAL  CORPORATIONS.  [CH.  XXI.' 

of  the  holder,  and  in  every  proceeding,  except  a  direct  one  to 
try  the  title  of  such  holder,  it  is  conclusive;  but  in  quo  warranto 
the  court  will  go  behind  the  certificate  or  commission,  and  in- 
quire into  the  validity  of  the  election  or  appointment,  and 
decide  the  legal  righls  of  the  parties  upon  full  investigation.1 

§  717.  In  a  proceeding  by  information  in  the  nature  of  a 
quo  warranto  the  defendant  must  either  disclaim  or  justify.  If 
he  disclaims,  the  people  are  at  once  entitled  to  judgment.  If 
he  justifies,  he  must  set  out  his  title  specifically.  It  is  not 
enough  to  allege  generally  that  he  was  duly  elected  or  ap- 
pointed to  the  office.  He  must  plead  facts,  showing  on  the 
face  of  the  plea  that  he  has  a  valid  title  to  the  office.  The 
people  or  state  is  not  bound  to  show  anything.  Therefore,  it 
is  no  answer  to  the  information  that  the  relator  is  not  entitled 
to  the  office.     The  defendant  is  called  upon  to  show  by  what 

1  People  v.  Van  Slyck,  4  Cowen,  297, 1825 ;  People  v.  Vail,  20  Wend.  12, 
1838 ;  People  v.  Kichardson,  4  Cow.  100,  101,  note  ;  ib.  297  ;  People  v.  Sea- 
man, 5  Denio,  409, 1848 ;  State  v.  Marston,  6  Kansas,  524,  1870 ;  Low  v. 
Towns,  Governor,  &c.  8  Geo.  360, 1850 ;  Pitts  v.  Bonner,  7  ib.  449.  Ante, 
Sec.  141  and  note ;  Sees.  143, 144, 160,  682. 

In  the  People  v.  Van  Slyck,  supra,  which  was  an  information  in  the  na- 
ture of  a  quo  warranto  against  one  intruding  into  an  office  by  reason  of  an 
unlawful  decision  of  the  board  of  canvassers,  Woodworth,  J.,  said  :  "  It  was 
contended  on  the  argument  that  the  decision  of  the  board  of  canvassers 
was  conclusive  until  reversed,  and  could  only  be  reviewed  by  certiorari.  [See, 
post,  Chap.  XXII.  Sec.  739 ;  ante,  Sec.  141.]  This  objection  cannot  prevail. 
They  are  required  by  the  act  to  attend  at  the  clerk's  office,  and  calculate 
and  ascertain  the  whole  number  of  votes  given  at  any  election,  and  certify 
the  same  to  be  a  true  canvass.  This  is  not  a  judicial  act,  but  merely  minis- 
terial. They  have  no  power  to  controvert  the  votes  of  the  electors.  If 
they  deviate  from  the  directions  of  the  statute,  and  certify  in  favor  of  an 
officer  not  duly  elected,  he  is  liable  to  be  ousted  on  an  information  in  the 
nature  of  a  quo  warranto  where  the  trial  is  had  upon  the  right  of  the  party 
holding  the  office.  The  court  will  decide,  upon  an  examination  of  all  the 
facts:"    4  Cow.  297,  323. 

Effect  of  choosing  or  electing  a  disqualified  person :  Ante,  p.  176,  Sec.  135; 
Commonwealth  v.  Cluley,  56  Pa.  St.  270,  1867 ;  Stephens'  Nisi  Prius,  2454. 

Acts  of  officers  de  facto  are  valid,  unless  directly  questioned  by  proceedings 
against  them :  Burke  v.  Elliott,  1  Ire.  Law,  355 ;  Burton  v.  Pattpn,  2,  Jones 
(North  Car.),  Law,  124.  Difference  between  de  facto  and  de  jure  officers  is 
well  stated  by  Ruffin,  C.  J. :  Ib.  Stephens'  Nisi  Prius,  2448.  See,  also,  ante, 
Sec.  160,  note ;  Sees.  211,  212,  214 ;  State  v.  Tolan,  33  N.  J.  Law,  195, 1,868.,  .; 


CH.  XXI.]  QUO  WARRANTO.  669 

warrant  he  exercises  the  functions  of  the  office ;  he  must  ex- 
hibit good  authority,  or  the  state  is  entitled  to  a  judgment  of 
ouster.1 

§  718.  Id  England  it  was  held,  in  Rex  v.  Saunders  (in  which 
an  information  in  the  nature  of  a  quo  warranto  was  moved 
against  the  defendant,  to  show  by  what  authority  he  claimed 
to  be  an  alderman  of  Taunton),  where  the  relator  showed  that 
the  corporation  was  dissolved  and  extinct,  and  that  no  corpor- 
ate body  in  fact  existed,  or  claimed  to  exist,  at  the  time  of  the 
application,  that  the  information  should  be  refused.2  This 
case  was  referred  to  in  South  Carolina,  and  the  opinion  ex- 
pressed that  quo  warranto  would  not  lie  against  one  claiming 
office  under  a  private  corporation  which  has  no  legal  existence.3 

1  Clark  v.  People,  15  111.  213, 1853  ;  Cole  oij  Crini.  Inf.  210,  212;  Willc. 
486,  487,  488,  where  the  requisites  of  pleas  are  stated ;  Angell  &  Ames  on 
Corp.  Sec.  756 ;  Stephens'  Nisi  Prius,  2431,  2464 ;  2  Kyd,  399.  It  is  not  suffi- 
cient for  the  defendant  to  aver  that  he  is  "duly  elected :"  Commonwealth 
v.  Gill,  3  Whart.  (Pa.)  228. 

*  Eex  v.  Saunders,  3  East,  119,  1802.  In  this  case  the  relator,  in  1802, 
stated  that  the  defendant  had  been  elected  alderman  in  1788,  and  that  the 
corporation  was  dissolved  in  1792,  since  which  no  acts  had  been  attempted 
to  be  done  by  the  corporate  body,  but  that  the  defendant  had  made  his  ap- 
pearance at  Taunton  at  the  last  election  for  members  of  parliament,  and  had 
there  claimed,  as  alderman,  to  be  returning  officer,  and  had  received  votes 
as  such,  and  had  executed  a  separate  return.  Lord  Ellenborough,  C.  J.,  de- 
livering the  judgment  of  the  court,  observed  that  "the  corporation  being 
stated  to  be  actually  dissolved,  and  no  corporate  body  claiming  to  be  such, 
in  existence,  the  act  of  this  individual  person  was  a  mere  nullity,  and  of  no 
more  effect  than  if  a  mere  stranger  had  coiie  into  the  town  and  claimed  to 
be  an  alderman  and  returning  officer.  Here  are  no  civil  rights  in  contro- 
versy, which  would  warrant  the  court  to  interfere  by  their  own  authority ; 
but  what  he  claimed  was  a  mere  nullity ;  there  was  no  such  office  in  exist- 
ence, and  therefore  no  -ground  for  our  interference,"  and  the  rule  was 
refused.  •  \ 

8  State  v.  Lehre,  7  Rich.  (South  Car.)  Law,  234,  324,  1854,  per  Glover,  J., 
who  said :  "  It  was  contended,  in  argument,  that  there  was  no  corporation, 
and  that  the  election  [for  bank  directors  and  president]  i»  therefore  void! 
If  no  corporation  exist,  it  would  be  nugatory  and  fruitless  to  proceed  any 
further  in  the  quo  warranto,  and  call  in  question  a  harmless  and  pretended 
claim,  where  no  civil  right  is  in  controversy.  If  there  was  no  such  corpora- 
tion, there  was  no  such  officer,  and  would  be*  as  was  said  by  Lord  Ellenbor- 
ough, in  Eex  v.  Saunders^(3  East,  119),  as  if  a  stranger,  had  come  into  town 
and  claimed  to  be  president  or  director." 


670  MUNICIPAL   CORPORATIONS.  [CH.  XXI. 

In  New  York,  however,  it  is  expressly  decided  that  the  question 
whether  a  municipal  or  public  corporation  has  been  legally  created  or 
erected,  may  be  tested  in  an  action  or  proceeding  in  the  nature 
of  quo  warranto  brought  against  any  one  exercising  an  office  in 
such  corporation.1 

§  719.  It  is  held,  in  England,  that  if  the  information  be  for 
using  a  franchise  by  a  corporation  it  should  be  against  the  cor- 
poration ;  but  if  for  usurping  to  be  a  corporation,  it  should  be 
against  the  particular  persons  guilty '  of  the  usurpation.2  In 
Ohio,  under  the  statutes  of  the  state,  the  proceeding  to  question 
the  franchise  of  being  a  private  corporation  must  be  against 
the  individuals  who  usurp  the  franchise  ;  and  an  information, 
in  the  nature  of  quo  warranto  will  not  lie  against  a  de  facto  cor* 
poration,  in  its  assumed  corporate  name,  to  compel  it  to  show 
by  what  title  it  exercisers  the  franchise  to  be  a  corporation ; 

1  People  o.  Carpenter,  24  N.  Y."86,  1861.  This  action  was  in  the  nature 
of  quo  warranto  in  the  name  of  the  people,  and  Was  brought  to  test  the  right 
of  the  defendant  to  exercise  the  duties  and  powers  of  supervisors  of  the 
town  of  Afton,  and  the  case  turned  upon  the  sole  point  Whether  that  town 
had  been  legally  created.  It  was  contended  in  argument  that  this  form  of 
action  was  not  the  appropriate  remedy  to  bring  up  for  deciding  that 
point.  Defendant's  argument  was,  that  if  there  was,  as  the  plaintiffs  allege; 
no  such  town  as  Afton,  then  it  was  impossible  that  the  defendant  should 
exercise  the  duties  of  an  office  which  had  no  existence.  "But,"  says  Dairies, 
J.,  "we  think  the  objection  too  technical.  The  object  of  the  framers  of  the 
code,  or  the  provisions  in  reference  to  these  actions,  manifestly  was  to  pro* 
vide  a  speedy  and  effective  mode  of  determining  the  claims  of  persons  to 
exercise  the  duties  of  any  office  within  this  state,  and  this  necessarily  in- 
volves the  determination  of  the  existence  of  the  particular  office."  See, 
also,  where  same  view  Was  taken,  The  People  v.  Draper,  15  N.  Y.  532,  an 
action  of  like  character,  to  test  right  of  the  defendants  to  the  office  of  police 
commissioners  under  the  metropolitan  police  district  act.  And  see  note  in 
4  Cow.  100  et  seq. 

In  Massachusetts,  it  was  held  that  where  a  new  county  had  been  created 
by  an  act  of  the  legislature  which  contained  a  provision  that  it  should  not 
take  effect  until  a  future  day  mentioned,  that  an  appointment  by  the  gov- 
ernor to  an  office  for  such  county,  before  the  act  took  effect  was  void,  and 
that  an  information  in  the  nature  of  a  quo  warranto  would  lie  to  remove 
the  appointee  :  Commonwealth  v.  Fowler,  10  Mass.  290, 1813.  S.  C.  11  ib. 
339. 

2  Rex  v.  Cusack,  2  Roll.  R.  113, 115;  4  Cow.  109,  note.  See  Mr.  Willcock's 
observations ;  Willc.  500,  pi.  488. 


CH.  XXI.]  QUO  WARRANTO.  671 

the  court  admitted,  however,  that  in  such  cases  municipal  cor- 
porations might  be  an  exception,  but  the  point  was  not  de- 
cided.1 

§  720.  In  no  instance  have  the  courts  of  this  country  de* 
clared  forfeited  the  charter  or  franchises  of  a  municipal  corpora- 
tion for  the  acts  or  misconduct  of  its  agents  or  officers.  That  this 
was  done  by  the  English  courts  prior  to  the  revolution  of  1688 
is  well  known.  The  case  of  the  city  of  London  is  the  most 
conspicuous  historical  example.  It  is  believed  that  such  a 
remedy  is  not  applicable  to  our  corporations,  created,  as  they 
are,  by  statute,  for  the  benefit  not  of  the  officers  or  a  few 
persons,  but  of  the  whole  body  of  the  inhabitants  residing 
therein  and  the  public.  If  the  officers,  usurp  rights  which  be- 
long to  the  state,  the  law,  by  injunction,  by  action,  by  declar- 
ing their  acts  void,  and  in  other  ways,  can  correct  the  usurpa- 
tion, and  should  do  it,  without  forfeiting  the  rights  and  fran- 
chises of  the  citizens  who  are  blameless.2 

1  State  v.  Cincinnati  Gas  Company,  18  Ohio  St.  262 ;  Commonwealth  v. 
Central  Passenger  Railway,  52  Pa.  St.  506.  Scott,  J.,  in  the  first  case,  says 
this  question  was  left  open  in  the  City  of  London's  Case,  8  How.  St.  T. 
1039,  and  seems  to  have  been  decided  otherwise  in  Rex  v.  Chester,  cited  2 
Term  R.  565,  but  that  in  this  country  the  weight  of  authority  is  otherwise  : 
People  v.  Railroad  Company,  15  Wend.  114 ;  People  v.  Richardson,  4  Cow. 
97, 109,  note;  Angell  &  Ames,  Sec.  756.  And  he  admits  that  municipal 
corporations  may  be  an  exception,  because  the  inhabitants  of  the  place  may 
be  so  numerous  that  it  would  be  impossible  to  proceed  against  them  indi- 
vidually. 

Judgment  in  quo  warranto  against  a  municipal  corporation  and  officers 
therein  acting  under  a  charter  which  had  not  legally  been  accepted  by 
reason  of  fraudulent  voting:  State  v.  Bradford,  32  Vt.  (3  Shaw)  50.  Accept- 
ance of  charter :  Ante,  p.  63,  Sec.  23. 

2  See,  on  this  subject,  Commonwealth  v.  Pittsburg,  14  Pa.  St.  177,  1850. 
Ante,  Chap.  VII.  on  the  Dissolution  of  Municipal  Corporations,  Sees.  109, 
110,  111,  112;  City  of  London's  Case,  ante,  p.  14. 

A  municipal  corporation  cannot,  in  any  collateral  proceeding,  be  declared 
or  held  to  have  forfeited  its  charter  for  non-user  or  other  cause ;  it  retains 
its  corporate  character  until  it  is  repealed  or  the  forfeiture  declared  by  di- 
rect judicial  proceeding:  Harris  v.  Nesbit,  24  Ala.  398,  1854  (ferry  contro- 
versy). Under  the  code  of  Alabama,  an  information  in  the  nature  of  a 
quo  warranto  will  not  lie  to  vacate  the  charter  of  a  municipal  corporation 
on  account  of  the  passage  of  unauthorized  ordinances  by  the  council: 
State,  &c  v.  Town  Council,  30  Ala.  66, 1857. 


672  MUNICIPAL   CORPORATIONS.  [CH.  XXI. 

§  721.  "We  have  elsewhere  treated  of  the  mode  in  which 
illegal  corporate  acts  may  be  prevented,  and  the  remedies  af- 
forded by  the  law  in  respect  thereto;1  but  it  may  be  here  ob- 
served that  an  information  in  the  nature  of  a  quo  warranto  may, 
in  proper  cases,  be  resorted  to  as  a  remedy  for  the  illegal  usurpa- 
tion, by  a  municipal  corporation,  of  the  powers  not  granted  to  it 
by  its  charter  or  the  law.  Thus,  in  South  Carolina,  it  has  been 
adjudged  that  the  right  of  a  municipal  corporation  to  exercise 
public  powers,  as,  for  example,  its  right  under  its  charter  to 
tax  certain  descriptions  of  property,  may  be  determined  on  an 
information  in  the  nature  of  a  quo  warranto,  filed  by  the  attor- 
ney general  against  the  corporation.2- 

§  722.  In  proceedings  in  the  nature  of  quo  warranto,  the  rule 
to  show  cause  is  not  grantable,  of  course,  but  depends  upon 
the  sound  discretion  of  the  court.  It  will  not  be  granted  in  all 
cases,  though  the  incumbent  be  ineligible  and  the  relator  have 
sufficient  interest  to  prosecute;  the  court  will  look  at  the  rela- 
tor's motive  and  the  public  good  in  the  exercise  of  the  discre- 
tion confided  to  it.3    Accordingly,  a  rule  was  refused  against 

1  Post,  Chap.  XXII.  XXIII.  *"' 

2  State  v.  Charleston,  1  Const.  R.  36,  1817 ;  Buller's  Mti  Prim,  212.  See 
in  Iowa,  State  v.  Lyons,  31  Iowa,  432, 1871,  where  the  nature  of  the  remedy 
was  discussed,  and  it  was  held  that. proceedings  in  quo  warranto  will  not  be 
entertained  for  the  purpose  of  annulling  a  city  ordinance  passed  in  the  irreg- 
ular and  improper  exercise  of  a  power  conferred  by  law. 

Quo  warranto  will  not  lie  against  a  corporation  for  taking  land  without 
making  compensation  as  required  by  law  —  trespass  is  the  remedy:  People 
v.  Hillsdale,  &c.  Company,  2  Johns.  190,  1807.  As  to  remedy,:  See  chapter 
on  Mandamus,  ante.  , 

Simple  error  of  judgment  on  the  part  of  officers  of  municipal  corporations 
as  to  the  extent  of  their  powers,  will  not  authorize  the  court,  on  quo  war- 
ranto, to  declare  a  forfeiture  of  their  offices :  State  v.  Town  Council,  30  Ala. 
66,  1857. 

3  Commonwealth  v.  Jones,  12  Pa.  St.  365, 1849 ;  Commonwealth  v.  Cluley, 
56  Pa.  St.  270,  1867;  Rex  v.  Parry,  6  Ad.  &  El.  810;  2N.&P.  414;  Rex  vm 
Brown,  3  Term  R.  574;  Rex  v.  Wardroper,  4  Burr.  1964;  Rex  <e.  Dawes,  ih. 
2022;  Rex  v.  Sargeant,  5  Term  R.  567. 

Who  may  be  a  relator,  and  what  will  constitute  a  sufficient  interest  to  give 
a  private  relator  the  writ  in  a  case  of  public  right,  or  to  test  the  right  to  a 
public  or  municipal  office :  Commonweath  v.  Cluley,  56  Pa.  St.  270 ;  S.  C. 
Pitts.  L.  J.  February  3, 1868,  and  cases  ci,ted,  as  to  right  of  defeated  candidate 
to  bring  quo  warranto  against  the  successful  candidate ;   Commonwealth  v. 


CH.  XXI.]  QUO  WARRANTO.  673 

the  defendant,  the  acting  mayor,  where  it  appeared  there  was 
no  adverse  claimant  to  the  office.1  So  the  court  refused  to 
allow  an  information  in  the  nature  of  a  quo  warranto  where  the 
election  day  was  suffered  to  lapse,  and  the  election  was  held  in 
good  faith  on  the  wrong  day.2 

§  723.  In  England  there  is  a  discretion  in  the  court  to 
grant  an  information  in  the  nature  of  a  quo  warranto  although 
the  case  cannot  be  tried  until  the  term  of  the  officer  is  at  an  end, 
satisfactory  reasons  for  the  delay  being  given ;  and  it  has  even 
been  granted  though  the  office  be  determined  at  the  time  the 
application  for  the  information  is  madd3  In  this  country  the 
authorities  are  conflicting.  In  some  of  the  states  it  has  been 
held  that  an  information  will  not  be  granted  when  it  is  not 
possible  to  enter  a  judgment  before  the  term  of  the  officer  pro- 
ceeded against  expiresi  In  other  cases  it  has  been  adjudged, 
and  we  think  correctly,  that  quo  warranto  may  be  properly 

Jones,  12  Pa.  St:  365,  1849j  Commonwealth  v.  Meeser,  44  Pa.  St.  341, 1863; 
S.  C.  Brightley's  Election  Cases,  659,  and  note,  and  cases  cited.  See,  also, 
as  to  interest  of  relator,  Brightley's  Election  Cases,  146,  289,  664;  Eaton  v. 
State,  7  Blackf.  65,  1843;  State  v.  SchnierifS,  5  Rich.  (Law)  299, 1852.  Must 
be  in  the  name  of  the  attorney  general :  lb.  A  voter  in  a  city  was  held  to 
have  a  sufficient  interest  in  the  due  election  of  members  of  the  city  council 
to  become  the  relator  in  quo  warranto  against  persons  exercising  the  duties 
of  counciimen:  State  v.  Tolan,  33  N.  J.  (Law)  195,  1868. 

See,  also,  as  to  relator :  Rex«.  Hodge,  2  B.  &  A.  344;  Rex  v.  Parry,  6  A.  & 
E.  810;  Rex  v.  Quayle,  11  A.  &  E.  508;  Rex  v.  Ogden,  10  B.  &.  C.  210;  Rex 
v.  Marten,  4  Burr.  2120 )  Rex  v.  Trevenen,  2  B.  &  A.  482;  Rex  v.  Slythe,  6  B. 
C.  242;  Reginae.  Anderson,  2  Q.  B.  740;  Regina  v.  Greene,  2  Q.  B.  460* 
See  Rule  of  Queen's  Bench  of  November"  8,  1839,  11  A.  &  E.  2 ;  Rawlinson 
on  Corp.  (5th  ed.)  359,  360;  Willc.  476;  Stephens'  Nisi  Prim,  2433. 

1  State  v.  Schnierie,  5  Rich.  (South  Car.)  Law,  299, 1852. 

?  State  v.  Tolan,  33  N.  J.  (Law)  195, 1868.  The  requirement  to  give  notice 
of  the  regular  annual  election,  of  which  the  time  is  fixed  by  charter,  is  directo- 
ry ;  People  v.  Hartwell,  12  Mich.  508,  1864;  People  v.  Witherell,  14  Mich. 
48.  Ante,  Sec.  136;  Sees.  156-160;  Sec.  675;.  Stephens'  Nisi  Prius,  2446, 
2447. 

8  Rex  v.  Williams,  1  W.  Black.  95 ;  Rex  v.  New  Radnor,  2  Ld.  Kenyon's 
Notes,  498 ;  Rex  v.  Harris,  6  Ad.  &  El.  475  (33  Eng.  C.  L.  117) ;  Rex  v  Pow- 
ell, Sayer,  239 ;  Rex  v.  Warlow,  2  M.  &  S.  76 ;  Rex  v.  Payne,  2  Chitty,  367 ; 
Angell  &  Ames,  Sec.  744.  Present  state  of  legislation  and  adjudications 
in  England  on  the  effect  of  delay  in  commencing  proceedings :  Rawlinson 
on  Corp.  (5th  Ed.)  357 ;  Stephens'  Nisi  Prius,  2432. 
85 


674  MUNICIPAL   CORPORATIONS.  [CH.  XXI. 

brought  during  the  official  term  of  the  officer,  and  if  so 
brought,  that  it  may  be  tried,  and  the  proper  judgment  entered 
afterwards.  In  North  Carolina  the  doctrine  of  the  English 
courts  above  mentioned  has  been  followed,  and  it  has  not  been 
considered  absolutely  necessary  that  the  information  should  be 
applied  for  while  the  defendant  is  continuing  to  hold  the  office. 
The  cases  on  this  subject  are  referred  to  in  the  note.1 

§  724.  Under  the  statute  of  9  Anne,  Chap.  XX,  Sec.  4,  reen- 
acted  in  many  of  the  states  literally  or  in  substance,  it  is  settled 
that  there  must  be  some  act  of  usurpation — a  user  or  possession 
of  the  office  or  franchise — to  authorize  an  information  in  the 
nature  of  a  quo  warranto.  It  is  not  sufficient  to  allege  merely 
that  the  defendant  claims  to  use  or  exercise  the  office  or  fran- 
chise.2 

1  "The  resignation  of  the  incumbent,  or  even  the  termination  of  his 
office,  will  not  prevent  the  information  being  prosecuted  to  a  final  judgment, 
if  the  proceedings  were  commenced  prior  to  the  resignation,  or  the  expira- 
tion of  the  term : "  Per  Wagner,  C.  J.,  Hunter  v.  Chandler,  45  Mo.  452, 1870 ; 
S.  C.  10  Am.  Law  Reg.  (N.  S.)  440 ;  S.  P.  Commonwealth  v.  Smith,  45  Pa.  St. 
59 ;  People  v.  Hartwell,  12  Mich.  508,  1864.  But  in  Georgia  it  is  held  that 
the  title  to  an  office  will  not  be  tried  on  quo  warranto,  when  at  the  time  of 
trial  the  term  of  office  is  expired,  and  no  judgment  of  ouster  can  be  ren- 
dered: Morris  v.  Underwood,  19  Ga.  559,  1856.  In  Massachusetts  an  in- 
formation was  refused,  for  reasons  partly  peculiar,  where  the  office  was 
annual,  and  there  could  be  no  determination  during  the  year :  Common- 
wealth v.  Althearn,  3  Mass.  285,  1807 ;  Howard  v.  Gage,  6  Mass.  462.  See, 
also,  People  v.  Sweeting,  2  Johns.  184 ;  State  v.  Jacobs,  17  Ohio,  143.  Com- 
pare People  0.  Loomis,  8  Wend.  396, 1832. 

Following  the  decisions  in  England,  it  has  been  held  that  an  information 
in  the  nature  of  a  quo  warranto  may*,  in  certain  cases,  be  filed  against  public 
officers  after  the  expiration  of  their  office,  or  against  special  commissioners 
after  they  have  acted  :  Burton  v.  Patton,  2  Jones  (North  Car.),  Law,  124, 
1854.  In  the  King  v.  Williams,  1  W.  Black.  93,  there  was  a  judgment  of 
ouster,  although  the  usurpation  (for  unlawfully  holding  a  court  in  the  cor- 
poration of  Denbigh)  was  not  continued  to  the  trial,  Lord  Mansfield  ob- 
serving, "judgment  of  ouster  must  be  given,  lest  the  defendant  repeat  the 
act:"    lb.  95. 

Effect  of  acquiescence  and  lapse  of  time  on  the  remedy  by  quo  warranto :  People 
v.  Oakland  Bank,  1  Doug.  (Mich.)  285 ;  People  v.  Pontiac  Bank,  12  Mich. 
527  ;  State  v.  Turnpike  Company,  8  Rh.  Is.  521 ;  State  v.  Cincinnati  Gas 
Company,  18  Ohio  St.  285,  1868;  Angell  &  Ames,  Corp.  Sec.  743. 

2  Rex' t).  Ponsonby,  1  Vesey,  1,  leading  case,  where  defendants  were 
charged  with  usurping  a  municipal  office,  cited  and  approved  and  followed 
by  Supreme  Court  of  New  York,  in  The  People  v.  Thompson,  16  Wend. 


OH.  XXI.]  QUO  WARRANTO.  675 

§  725.  The  judgment  of  ouster  on  quo  warranto,  until  reversed 
conclusively  and  finally,  determines  the  right  as  to  all  persons 
whomsoever ;  and  it  may  be  given  in  evidence  by  the  parties 
and  others,  without  being  pleaded,  on  an ,  issue  involving  the 
rights  upon  which  it  has  passed.1 

§  726.  It  does  not  belong  to  a  work  of  this  character  to 
treat  of  the  practice  in  proceedings  in  informations  in  the  na- 
ture of  a  quo  warranto.  This  is  regulated,  to  a  considerable 
extent,  by  the  statutes  of  the  different  states,  which  modify, 
and  render  more  simple,  speedy,  and  effectual,  the  common 
law  modes  of  procedure.  But  the  nature  of  the  remedy,  and 
the  principles  which  govern  it,  remain  substantially  as  at  com- 
mon law,  as  amended  by  remedial  acts  of  parliament ;  and  the 
practice,  as  near  as  practicable,  is  the  same  as  in  the  King's 
Bench,  except  when  altered  by  the  legislation  of  the  particular 
state.2  It  must  suffice  to  refer  the  reader  to  sources  of  in- 
formation on  this  subject.3 

655,  1837.  See,  also,  Eex  v.  Whitwell,5  T.  B.  86 ;  Buller's  Nisi  Prim,  211 ; 
Willc.  on  Mun.  Corp.  462,  pi.  254,  etseg.;  Angell  &  Ames,  Corp.  Sec.  744; 
Stephens'  Nisi  Prim,  2457.  The  statute  of  Anne  commences,  "If  any  per- 
son or  persons  shall  usurp,  or  intrude  into,  or  unlawfully  hold  and  execute, 
the  offices  of,"  &c. 

1  Utica  Insurance  Company  v.  Scott,  8  Cow.  708,  721, 1826,  per  Colden,  Sen- 
ator, and  authorities  there  digested.  In  Missouri,  see  Hunter  v.  Chandler, 
45  Mo.  452.  A  former  judgment  on  an  individual  relation  in  quo  warranto 
by  the  district  attorney  was  held  to  be  no  bar  to  a  public  proceeding  by  the 
attorney  general:  State  v.  Cincinnati  Gas  Company,  18  Ohio  St.  285,  1868. 
And  a  decree  of  a  federal  court  enjoining  a  party  from  obeying  an  ordi- 
nance does  not  affect  the  right  of  the  state,  not  a  party  to  that  proceeding, 
to  proceed  by  quo  warranto  to  assert  the  validity  of  the  ordinance.    lb. 

2  Commonwealth  v.  Jones,  12  Pa.  St.  365, 1849,  where  the  practice  under 
the  act  of  1836  is  stated.  Former  practice  no  longer  obtains  under  code  of 
New  York :    People  v.  Conover,  6  Abb.  Pr.  E.  220. 

8  Willc.  453,  etseq.;  Angell  &  Ames,  Chap.  XXI.;  3  Black.  Com.  262; 
Buller's  Nisi  Prius,  210 ;  Stephens'  Nisi  Prius,  2460,  2429,  et  seq.  Mule  to  show 
eause:  Commonwealths.  Jones,  12  Pa.  St.  365.  When  dispensed  with :  State 
v.  Gummersall,  4  Zabr.  (N.  J.)  529,  1854. 

Process  upon  filing  information :  Willc.  264 ;  Commonwealth  v.  Smead, 
11  M  ass.  74 ;  State  v.  Gummersall,  4  Zabr.  (N.  J.)  529,  1854.  Forms  of  In- 
formation— Pleas  and  Replication  in  Proceedings  by  Quo  Warranto:  People  v. 
Bank  of  Niagara,  6  Cow.  196,  approving  precedent  used  in  the  celebrated 
case  against  the  city  of  London  (3  Hargr.  St.  Tr.  545),  and  in  Eex  v.  Amery 


676  MUNICIPAL   CORPORATIONS.  [CH.  XXIi 

(2  T.  Rep.  515).  For  further  forms,  see  learned  and  valuable  note  to  the 
People  v.  Richardson,  4  Cow.  (N.  Y.)  106,  et  seq.  and  authorities  there  cited ; 
People  v.  Van  Slyck,  4  Cow.  297.  See,  also,  Eaton  v.  State,  7  Blackf.  (Ind.) 
65, 1843.  Form  of  Verdict :  Thompson  v.  People,  23  Wend.  537,  reversing  S. 
C.  21  Wend.  235.  Form  of  Judgment  of  Ouster:  2  Kyd  on  Corp.  407 ;  8  Cow. 
721 ;  Commonwealth  v.  Fowler,  10  Mass.  290,  1813  ;  S.  C.  11  ib.  339,  where 
the  form  of  judgment  is  given.  See,  also,  as  to  form  of  judgment :  Miner's 
Bank  v.  United  States,  5  How.  (U.  S.)  213,  1847.  If  relators  are  successful, 
they  are  entitled  to  costs,  and  hence  are  entitled  to  a  judgment  of  ouster, 
although  the  term  of  the  office  in  question  has  expired :  People  v.  Loomis, 
8  Wend.  396, 1832.  Contra,  State  v.  Jacobs,  17  Ohio,  143.'  And  see  Angell 
&  Ames  on  Corp.  Sec.  745.  Supra,  Sec.  723.  Judgment,  under  statute,  of 
ouster  against  the  defendant  without  passing  upon  the  plaintiff's  right : 
Gano  v.  State,  10  Ohio  St.  237. 

The  refusal  of  the  court  to  allow  a  claimant  to  a  public  office  to  file  an 
information  is  a.  final  judgment,  reviewable  on  error,  and  this,  notwithstand- 
ing the  court  has  a  discretion  in  granting  or  refusing  leaye :  State  v.  J5ur» 
nett,  2  Ala.  140, 1841 ;  Ethridge  v.  Hill,  7  Port.  (Ala,)  47, 


CH.  XXII.]  ILLEGAL  CORPORATE  ACTS.— REMEDY  IN  EQUITY.  677 


CHAPTER  XXII. 

Remedies  to  Prevent,  Correct,  and  Redress  Illegal 
Corporate  Acts. 

This  subject  will  be  considered  in  the  following  order :  — 
J.     Of  the  Remedy  in  Equity— Seen.  727-738. 

2,  Of  the  Remedy  by  Certiorari—  Sees.  739-743. 

3,  Of  the  Remedy  by  Prohibition— Sec.  744. 

4,  Of  the  Remedy  by  Indictment —  Sees.  745  -  748. 

The  remedy  by  private  action  is  treated  in  the  next  chapter. 

Remedy  in  Equity. 

§  727.  Equity  will  sometimes  interfere  to  prevent  the  mu- 
nicipal authorities  from  making  an  illegal  use  of  their  powers, 
and  relieve  against  their  illegal  acts ;  but  on  a  principle  well 
known  to  our  jurisprudence,  there  should  be  some  reason  to 
justify  a  resort  to  this  tribunal,  such  as  the  want  of  an  ade- 
quate remedy  at  law,  irreparable  injury,  breach  of  trust,  or  the 
like.  Usually,  the  question  whether  municipal  and  public 
corporations  are  acting,  or  have  acted,  within  the  limits  of  the 
authority  which  the  law  confers  upon  them,  involves  an  exam- 
ination of  purely  legal  principles,  unmixed  with  equity.  There- 
fore, in  general,  the  court  of  chancery  has  no  jurisdiction  to 
restrain,  review,  or  set  aside,  even  if  irregular  or  illegal,  the 
proceedings  of  such  a  corporation.  This  jurisdiction  belongs, 
except  in  special  cases,  which  will  be  mentioned,  to  the  super- 
visory power  and  control  of  the  common  law  courts.1 

1  Mayor,  &c.  of  Brooklyn  v.  Meserole,  26  Wend.  132, 1841,  per  Nelson,  C. 
J.,  who  admits  of  only  two  classes  of  such  cases  in  which  equity  has  juris- 
diction,— 1,  Irreparable  injury;  and  2,  Multiplicity  of  suits, — and  approves 
Mooers  v.  Smedley,  6  Johns.  Ch.  28.  See,  also,  Hey  wood  v.  Buffalo,  14  N. 
Y.  534, 1856 ;  Bank  v.  Supervisors,  25  N.  Y.  312 ;  Dows  v.  Chicago,  11  Wall. 
108, 1870.  In  the  federal  courts  it  is  well  known  there  can  be  no  case  of 
equitable  cognizance  where  there  is  a  plain  and  adequate  remedy  at  law: 
lb.  Ewing  v.  St.  Louis,  5  Wall.  413, 1866,  citing  with  approval,  Mayor,  &c. 
v.  Meserole,  and  Hey  wood  v.  Buffalo,  above-mentioned.  Ante,  Sec.  476,  and 
note. 


678  MUNICIPAL   CORPORATIONS.  [CH.  XXII. 

§  728.  But  since  these  corporations  hold  their  powers  in 
trust  for  the  public  benefit,  and  since  the  remedy  by  injunc- 
tion Or  by  bill  in  equity  is  often  more  efficacious  than  any 
other  to  restrain  and  correct  municipal  abuses,  the  spirit  of 
the  later  cases  is  to  favor  a  relaxation,  rather  than  a  strict  ap- 
plication of  the  rule  adverted  to,  which  denies  the  right  to  go 
into  equity  if  there  be  a  plain  and  full  remedy  at  law.  The 
state  of  the  law,  as  moulded  by  the  courts,  on  the  subject  of 
relief  against  illegal  corporate  acts,  threatened  or  consummated, 
can  be  most  satisfactorily  ascertained  by  a  general  survey  of  the 
field  of  adjudication.  Generally  speaking,  equity  will  inter- 
fere in  favor  of,  or  against,  muncipal  corporations,  on  the  same 
principles  by  which  it  is  guided  in  other  cases.1     For  the  rea- 

So,  in  New  Jersey,  by  a  long  established  practice,  courts  of  law  are  regarded 
as  the  proper  tribunal  to  review  the  irregularities  or  errors  in  the  acts  and 
proceedings  of  municipal  corporations ;  but  under  certain  circumstances, 
equity  will  entertain  jurisdiction  for  like  purposes:  Morris  Canal  Company 
v.  Jersey  city,  1  Beasley  (N.  J.)  252,  1859;  State  v.  Jersey  city,  5  Dutch.  441; 
Carron  v.  Martin,  2  Dutch.  594,  1857 ;  State  v.  Newark,  1  ib.  399 ;  Holmes  v. 
Jersey  City,  1  Beasl.  299 ;  Attorney  General  v.  Patterson,  1  Stock.  (N.  J.) 
624 ;  State  v.  Jersey  City,  1  Vroom.  521 ;  Ib.  247 ;  Bond  v.  Newark,  19  N.  J. 
Bq.  376;  Cross  v.  Morristown,  18  ib.  305.  Infra,  Sec.  741.  See,  also,  Gartside 
v.  East  St.  Louis,  43  111.  47 ;  Oakland  v.  Carpentier,  13  Cal.  540,  643 ;  Intend- 
ant  v.  Pippin,  31  Ala.  542, 551,  per  Stone,  X ;  Baltimore  v.  Railroad  Company, 
21  Md.  50,  1863. 

As  to  relief  in  equity  against  forfeitures  under  municipal  ordinances,  see 
Chap.  XII.  ante,  Sec.  286 ;  Chap.  XV.  Sec.  449.  Jurisdiction  and  relief  in 
equity,  see  Index. —  Equity;  2  Spence  Eq.  Jurisd.  32. 

Injunction — when  granted  in  matters  concerning  municipal  elections: 
Brightley's  Election  Cases,  623,  573.  And  see  chapters  on  Municipal  Offi- 
cers and  Mandamus,  ante ;  Index,  Injunction.  Eight  of  county,  or  the  body 
which  represents  it,  to  file  bill  in  Chancery  to  restrain  an  illegal  appropria- 
tion of  a  public  highway :  Justices,  &c.  v.  Plankroad  Company,  9  Ga.  475  ; 
and  compare  15  Ga.  39.  See,  ante,  Chaps,  on  Dedication  and  Streets ;  Index : 
Equity,  Injunction. 

The  subjects  of  Mandamus  (ante,  Chap.  XX.),  -and  Quo  Warranto  (ante, 
Chap.  XXL),  are  separately  treated. 

1  Attorney  General  v.  Corporation  of  Plymouth,  9  Beav.  67.  Accordingly, 
it  was  held  where  the  owner  conveyed  property  to  a  city  for  a  public  way, 
in  the  confidence  of  receiving  compensation,  which  the  corporation  failed 
to  make,  that  he  was  entitled  to  relief:  Walker  v.  City  Council,  1  Bailey 
(South  Car.),  Eq.  443,  1831. 

Bill  by  corporation  to  set  aside  fraudulent  grant  by  its  council :  Oakland 
v.  Carpentier,  13  Cal.  540.  See  S.  C.  subsequently  reported.  See,  also, 
O'Brien  County  v.  Brown,  1  Dillon,  C.  C.  R.  588,  bill  to  set  aside  fraudulent 


CH.  XXII.]       ILLEGAL  CORPORATE  ACTS. — REMEDY  IN  EQUITY.       679 

son  that  these  corporations  are  intrusted  for  defined  objects, 
or  for  public  purposes  with  large  powers,  the  courts  have 
evinced  some  anxiety  not  to  allow  their  authority  to  be  used 
to  oppress  the  inhabitants  in  their  jurisdiction;  and  it  may 
safely  be  affirmed  that  there  is  a  remedy,  either  in  equity  or 
by  certiorari,  prohibition,  appeal,  indictment,  civil  action,  or 
in  some  other  way,  for  all  abuses  of  power  and  all  invasions  of 
the  legal  rights  of  the  citizens  subjected  to  municipal  control. 
There  can,  at  least  ordinarily,  be  no  judicial  restraint  or  inter- 
ference with  the  bona  fide,  exercise  of  powers,  legislative  or  dis- 
cretionary in  their  nature,  and  which  do  not  violate  private 
rights.1  We  have  had  occasion  already,  to  some  extent,  to 
state,  in  connection  with  special  topics  discussed,  in  what  cases, 
and  in  what  mode,  corporate  acts  and  proceedings  may  be  ju- 
dicially examined  or  reviewed,2  but  the  subject  is  of  sufficient 
importance  to  require  some  further  separate  consideration. 

judgment.  It  seems  that  a  municipal  corporation,  in  its  corporate  charac- 
ter, where  the  alleged  illegal  action  is  not  aimed  at  and  cannot  affect  the 
corporate  rights  or  corporate,  property,  cannot  maintain  an  action  to  restrain 
or  to  be  relieved  against  the  levy  of  ah  illegal  tax  upon  the  tax-payers,  as 
where  the  board  of  supervisors  of  the  county  are  proceeding  to  levy  and 
collect  an  illegal  tax  upon  the  taxable  property  of  the  citizens  of  one  of  the 
towns  in  the  county  :  Guilford  v.  Supervisors,  13  N.  Y.  143,  1855,  per  Denio, 
J.,  who  says :  "the  principles  affirmed  in  this  court  by  Lorillard  v.  Town 
of  Monroe,  1  Kern.  392,  seem  to  me,  hostile  to  this  action;"  And  see  subse- 
quent cases  of  Doolittle  v,  Supervisors,  &c.  18  N.  Y.  155,  and  Roosevelt  *. 
Draper,  23  ib.  318,  below-mentioned.    Infra,  Sec.  735. 

Where  the  mayor  is  invested  with  the  power  of  seeing  that  the  charter  of 
the  corporation  is  faithfully  executed,  this  is  a  duty  with  which  he  is  en- 
trusted for  the  common  benefit  of  all  the  corporators,  and  gives  him  the 
right  to  select  the  means  best  calculated  to  discharge  it,  and  in  the  exercise 
of  this  right  he  may,  according  to  the  liberal,  but  somewhat  questionable, 
view  of  the  Supreme  Court  of  Louisiana,  in  his  official  name  and  capacity, 
bring  suit  to  test  the  legality  of  the  ordinances  and  to  restrain  the  aldermen 
or  officers  of  the  corporation  from  issuing  warrants  or  doing  acts  in  viola- 
tion of  the  laws  of  the  state  or  the  charter  of  the  city :  Genois,  Mayor,  &c. 
v.  Lockett,  13  La.  545.  1838. 

1  Ante,  p.  106,  Sec.  58 ;  Infra,  Sec.  741 ;  Hamerick  v.  Bouse  (county  seat 
removal),  17  Ga.  56, 1855 ;  State  v.  Woody,  *.  612.    Post,  Chap.  XXIII. 

2  Ante,  p..  180,  Sec.  141 ;  p.  243,  Sec.  213;  p.  273,  note ;  p.  361,  Sec.  368,  and 
note  ;  p.  458,  Sec.  476.  Ante,  Sec.  721.  See,  also,  Richardson  v.  Baltimore, 
8  Gill  (Md.),  433, 1849 ;  Alexander  v.  Baltimore,  5  ib.  383  ;  Dudley  v.  Frank- 
fort, 12  B.  Mon.  610,  615,  1851. 


680  MUNICIPAL    CORPORATIONS.  [CH.  XXII. 

§  729.  In  respect  of  property  held  by  municipal  corpora-, 
tions  in  trust,  or  clothed  with  public  duties,  equity  has  always  as- 
serted its  jurisdiction  to  see  that  the  trusts  were  performed 
and  the  public  duties  discharged.1  In  England,  and  possibly, 
also  in  this  country,  the  bill  may  in  such  cases  be  filed  against 
the  municipal  corporation  and  its  officers  by  the  attorney  gen- 
eral on  behalf  of  the  corporators  ,or  persons  interested ;  or  the 
latter  may,  perhaps,  under  the  line  of  decisions  in  this  country 
presently  to  be  mentioned,  exhibit  the  bill  in  their  own  names. 
The  jurisdiction  of  chancery  in  such  cases  over  municipal  cor- 
porations is  forcibly  asserted  by  the  House  of  Lords,  in  an  in- 
teresting and  important  case  in  which  the  corporation  of  Dub- 
lin, under  act  of  parliament,  was  the  trustee  of  furlds  raised 
from  water  rates,  to  supply  the  city  with  water,  and  whe're  the 
bill,  charging  the  corporation  with  breaches  of  trust  and  mis- 
management, was  filed  by  the  attorney  general,  on  behalf  of 
the  inhabitants  of  Dublin  paying  water  rates.2  Here  the  pub- 
lic were  interested  iri  the  proper  administration  of  the  author- 
ity which  had  been  conferred  upon  the  city  corporation  in 
respect  to  the  supply  of  water  to  the  city,  and  it  is  obvious  that 
there  was  no  adequate  remedy  at  law,  and  hence  the  propriety 

1  Attorney  General  v.  Liverpool,  13  Eng,  Ch.  (1  Mylne  &  Craig,  171)  343, 
359,  1835 ;  Attorney  General  v.  Dublin,  1  Bligh,  N.  R.  312,  1827.  Ante,  p.  81, 
Sec.  37  S  p.  93,  Se'c.  47;  chapter  on  Corporate  Property,  ante,  Sees.  437-441 ; 
chapter  on  Dedication,  ante,  Sec.  515  ;  Baltimore  v.  Eailroad  Company,  21 
Md.  50  1863. 

It  is  "a  distinctive  characteristic  of  a  corporation  that  it  is  accountable  in 
equity  for  misapplication  of  trust  funds,  whereas,  any  other  body  of  men,  as  a 
parish,  can  only  (where  relief  can  be  had  at  all)  be  touched  through  the 
individuals,  or  their  representatives,  who  have  committed  the  actual  breach 
of  trust : "  Grant  on  Corp.  138.  Mr.  Srjence  discusses  the  subject  of  the 
equity  jurisdiction  over  corporations  as  trustees  satisfactorily  :  2  Spence, 
Eq.  Jurisd.  32-35. 

2  Attorney  General  v.  Dublin,  1  Bligh,  N.  E.  312, 1827.  See,  also,  Attor- 
ney General  v.  Liverpool,  13  Eng.  Ch.  (1  Mylne  &  Craig,  171)  343, 1835.  The 
principles  on  which  equity  will  enjoin  the  proceedings  of  public  officers  are 
stated  by  Lord  Cottenham :  Frewin  v.  Lewis,  18  Eng.  Ch.  (4  Mylne  &  Craig) 
249, 1838.  See,  also,  Baltimore  v.  Horn,  26  Md.  194,  1866  ;  Holland's  Case, 
11  Md,  186 ;  Baltimore  v.  Porter,  18  Md.  284,  1861 ;  Attorney  General  v. 
Heclis,  2  Sim.  &  Stu.  67.  Duties  and  liabilities  of  public  officers :  Ante,  176, 
and  note. 


CH.  XXII.]   ILLEGAL  CORPORATE  ACTS. — REMEDY  IN  EQUITY.  681 

of  a  resort  to  equity  by  the  rate  payers,  in  the  name  of  the 
officer  authorized  to  represent  the  public.1 

§  730.  So  the  Court  of  Chancery,  in  England,  notwith- 
standing another  remedy  (which  is  construed  to  be  cumulative) 
is  given  by  statute,  will  relieve  against  fraudulent  dispositions  of 
corporate  property.  And  it  will  also  interfere  to  prevent  muni- 
cipal councils  from  abusing  powers  relating  to  properly  and  funds 
entrusted  to  them  to  be  exercised  in  conformity  with  law  for 
the  benefit  of  the  incorporated  place  or  its  inhabitants.  The 
liberal,  enlightened,  and  salutary  view  is  taken,  that  the  pow- 
ers conferred  by  the  Municipal  Corporations  Act  upon  coun- 
cils in  respect  to  the  corporate  property,  are  public  trusts,  and 
the  property  owned  by  tbe  corporations  is  held  by  them  in 
trust,  and  hence,  if  these  powers  are  abused — as,  for  example, 
the  power  of  a  council  to  award  compensation  to  officers  of  the 
corporation,  or  if  corporate  property  is  collusively  alienated  — 
this  is  a  breach  of  trust  of  which  equity  will  take  cognizance.2 

1  In  England  it  is  settled,  that  in  cases  such  as  those  mentioned  in  the 
text,  or  where  the  corporation  is  a  trustee  of  property  or  funds  for  public 
uses,  it  can  be  made  to  account  to  the  crown,  on  an  information,  but  not  to 
private  persona  in  a  suit  in  equity :  Grant  on  Corp.  138 ;  Skinner's  Company 
v.  Irish  Society,  12  CI.  &  F.  487.  See,  also,  2  Spence  Eq.  Jurisdic.  32-35. 
In  a  very  recent  case  in  California,  it  was  decided  that  where  a  suit  is 
instituted  in  the  name  of  the  state  by  the  attorney  general,  on  the  relation 
of  the  real  party  in  interest  seeking  relief,  and  the  state  has  no  interest 
therein,  the  attorney  general,  as  such,  has  no  power  to  control  the  suit  or 
withdraw  his  consent  to  the  use  of  the  state's  name,  to  the  prejudice  of  the 
relator:  People  v.  Railroad  Company,  38  Cal.  564.  See  ante,  Chap.  XX . 
In  a  late  case  in  New  York,  commissioners  appointed  under  an  act  of  the 
legislature  sought  to  issue  the  bonds  of  a  town  authorized  by  that  act  for 
railroad  purposes  without  performing  conditions  precedent  required  there- 
by, and  it  was  held  that  the  attorney  general  had  no  power  at  common  law  to 
maintain  an  action  in  the  name  of  the  people  to  restrain  them :  People  v. 
Miner,  2  Lansing  (N.  Y.),  396.    See  2  Spence  Eq.  Jurisdic.  35,  note  (c). 

2  Attorney  General  v.  Poole,  4  Mylne  &  Cr.  17,  30,  and  overruling  2  Keen, 
190,  206;  Parr  v.  Attorney  General,  8  CI.  &  F.  409;  Attorney  General  v.  As- 
pinwall,  2  Mylne  &  Cr.  613,  overruling  Master  of  the  Bolls,  1  Keen,  513  ; 
Attorney  General  v.  Wilson,  9  Sim.  30;  affirmed  by  the  Lord  Chancellor,  1 
Cr.  &  Ph.  1 ;  2  Spence  Eq.  Jurisd.  34.  If  members  of  a  corporation  contrive 
a  scheme  to  defraud  a  corporation  of  its  property,  they  are  personally  liable: 
lb.  See,  also,  Attorney  General  v.  Lichfield,  11  Beav.  120;  Attorney  Gen- 
eral v.  Leicester,  9  Beav.  546 ;  Attorney  General  v.  Plymouth,  9  Beav.  67 ; 
Reginaa.  Liverpool,  9  A.  &  E.  435;    Grant  on  Corp.  137-139,  142.    Ante 

86 


682  MUNICIPAL    OOKPOKATIONS.  [CH.  XXII. 

§  731.  In  this  country,  the  right  of  property  holders  or  taxa- 
ble inhabitants  to  resort  to  equity  to  restrain  municipal  corpo- 
rations and  their  officers  from  transcending  their  lawful  pow- 
ers or  violating  their  legal  duties  in  any  mode  which  will  in- 
juriously affect  the  tax-payers,  such  as  making  an  unauthorized 
appropriation  of  the  corporate  funds,  or  an  illegal  disposition 
of  the  corporate  property,  or  levying  and  collecting  void  and 
illegal  taxes  and  assessments,  under  the  circumstances  presently 
to  be  explained,  has  been  affirmed  or  recognized  in  numerous 
cases  in  many  of  the  states.  It  is  the  prevailing  doctrine  on 
this  subject.  It  can,  perhaps,  be  vindicated  upon  principle, 
in  view  of  the  nature  of  the  powers  exercised  by  municipal 
corporations  and  the  necessity  of  affording  easy,  direct,  and 
adequate  preventive  relief  against  their  abuse.  It  is  advisable 
briefly  to  examine  the  doctrine  and  the  grounds  upon  which  it 
rests  in  the  light  of  some  of  the  leading  judgments  of  the  courts, 
in  order  to  learn  its  scope,  limitations,  and  application. 

§  732.  The  Supreme  Court  of  Connecticut,  in  holding  that 
a  citizen  and  tax-payer  of  an  incorporated  city  is  entitled  to  an  in^ 
junction  to  restrain  an  illegal  appropriation  of  the  money  of  the  city, 
says,  in  substance,  that  this  js  so  because  the  city  corporation 
holds  its  moneys  for  tlie  corporators,  the  inhabitants  of  the 
city,  to  be  expended  for  legitimate  corporate  purposes>  and  a, 
misappropriation  of  these  funds  is  an  injury  to  the  tax-payer, 
for  which  no  other  remedy  is  so  effectual  or  appropriate.  If 
the  money  is  taken  out  of  the  treasury,  one  person  cannot 
well  sue  either  the  city  or  the  person  who  receives  the  money 
for  his  proportion,  and  it  is  impracticable  for  all  to  unite  in 
such  a  suit.1  And  when  the  amount  thus  misappropriated  is 
subsequently  needed  for  legitimate  purposes,  a  citizen  cannot 
resist  the  necessary  tax  because  the  corporation  had,  at  a  prior 
time,  misappropriated  money.2 

Sees.  175, 176,  and  note.  Conformably  to  these  principles,  where  the  mu- 
nicipal council,  without  authority  of  law,  gave  a  bond  to  secure  compens-. 
tion  out  of  the  corporate  funds  to  an  officer  of  the  corporation,  this  was 
held  to  be  a  breach  of  their  trust,  cognizable  in  chancery:  Parr  v.  Attorney 
General,  8  CI.  &  F.  409.   ;   ' 

1  Washington  v.  Harvard,  8  Cush.  66, 1851.    Post,  Chap.  XXIII. 

2  New  London  v.  Brainard,  22  Conn.  552,  1853  (appropriating  money  to 
celebrate  the  Fourth  of  July).    Ante,  Sec.  100.    Scofield  v.  Eighth  School 


CH.  XXII.]    ILLEGAL  CORPORATE  ACTS. —  REMEDY  IN  EQUITY.         683 

§  733.  The  same  doctrine  has  been  expressly  sanctioned  by 
the  Court  of  Appeals  in  Maryland,  in  a  case  in  which  it  was 
held  that  residents  and  tax-payers  of  a  city  might  file  a  bill  in 
equity  to  restrain  the  corporation  and  its  officers  from  taking 
steps  to  carry  out  a  city  ordinance  creating  a  debt  in  violation 
of  the  constitution.1  Mr.  Chief  Justice  Bartol,  in  giving  the 
judgment  of  that  tribunal,  observed  that,  "in  this  state  the 
courts  have  always  maintained,  with  jealous  vigilance,  the 
restraints  and  limitations  imposed  by  law  upon  the  exercise  of 
power  by  municipal  and  other  corporations.  If  the  right  to 
maintain  such  a  bill  as  this  be  denied,  citizens  or  property 
holders  would  be  without  adequate  remedy  to  prevent  the 
injury  which  might  result  to  them  from  the  unauthorized  or 
illegal  acts  of  the  municipal  government  or  its  officers  and 
agents.'* 

District  (illegal  use  of  school  house),  27  Conn.  499,  504,  applying  the  same 
principle  to  the  misappropriation  of  corporate  property ;  Webster  v.  Har- 
wington,  32  Conn.  131;  Terretttf.  Sharon,  34  Conn.  105. 

Though  money  has  been  illegally  voted  by  a  city  or  town,  and  though 
the  petitioners  are  entitled  to  resort  to  equity  to  restrain  illegal  appropria- 
tions, yet,  if  they  have  been  guilty  of  gross  laches,  and  have  knowingly  per- 
mitted third  persons  to  incur  liabilities  in  good  faith,  relying  upon  such  ap- 
propriation for  reimbursement,  an  injunction  will  be  denied :  Tash  v.  Ad- 
ams, 10  Cush.  252, 1852.  But  parties  in  whose  favor  the  illegal  vote  was 
made,  though  they  incurred  expenditures  on  the  faith  of  it,  are  not  third 
persons  in  the  meaning  of  the  principle :  Claflin  v.  Hopkinton,  4  Gray,  502, 
1855 ;  compare,  New  London  v.  Brainard,  supra  ;  Hodge  v.  Buffalo,  2  Denio, 
110.    See  Index —  Ultra  Vires. 

If  an  appropriation  of  money  be  made  for  two  objects — one  lawful  and  the 
other  not,  and  it  cannot  be  distinguished  and  separated,  the  whole  will  be 
held  void ;  otherwise  the  court  will  enjoin  or  relieve  against  the  expendi- 
ture which  is  unlawful:  Roberts  v.  Mayor,  &c.  of  New  York,  5  Abb.  Pr.  B. 
41 ;  Howes  v.  Racine,  21  Wis.  514. 

County  supervisors  cannot,  without  the  aid  of  legislative  authority,  pay 
a  debt,  though  meritorious  if  it  had  been  legally  contracted,  which  is  not 
legally  obligatory  upon  the  county :  People  v.  Stout,  23  Barb.  349.  See 
ante,  Sees.  44,  398.    Infra,  Sec.  734. 

1  Baltimore  v.  Gill,  31  Md.  375,  395,  1869  (ante,  Sec.  85) ;  approving,  New 
London  v.  Brainard,  supra,  and  Merrill  v.  Plainfield,  45  N.  H.  126;  and  dis- 
approving, Eoosevelt  v.  Draper,  23  N.  Y.  318,  and  Doolittle  v.  Supervisors, 
18  N.  Y.  155,  mentioned  below,  Sec.  735.  See,  also,  in  Maryland,  Frederick 
v.  Groshen,  30  Md.  436;  Baltimore  B.Porter,  18  Md.  284, 1861. 


684  MUNICIPAL   CORPORATIONS.  •      [CH.  XXII. 

§  734.  So,  in  Illinois,  on  the  ground  that  the  remedy  in 
equity  is  more  direct,  speedy,  and  effectual,  than  by  certiorari, 
equity  will  entertain  jurisdiction  of  a  bill  on  behalf  of  tax- 
payers to  enjoin  the  misapplication  of  the  moneys  of  the  corpora- 
tion.1 Based  upon  such  considerations,  it  has  been  held  that 
one  or  more  tax-payers,  without  showing  any  other  injury 
than  that  which  they  will  suffer  in  common  with  other  property 
holders  of  the  municipality,  may  file  a  bill  to  restrain  the  allow- 
ance and  payment  of  an  illegal  claim,  or  the  collection  of  a  tax  for 
unauthorized  objects,  such  as  for  example,  to  pay  a  fraudulent 
or  collusive  judgment;2  or  to  pay  the  expenses  of  a  railroad 
survey  which  there  was  no  power  to  make;3  or  to  refund  to 
individuals  money  voluntarily  contributed  by  them  for  the 
purpose  of  avoiding  a  draft  in  the  town.4 

§  735.  But,  on  the  other  hand,  it  has  been  several  times 
decided  in  18  ew  York,  that  resident  citizens  or  tax-payers  of  a 
municipal  corporation  cannot,  as  such,  merely,  either  on  their 
own  behalf  or  on  behalf  of  themselves  and  all  others  having  a 
like  interest,  maintain  a  suit  to  restrain  or  avoid  corporate 
acts  alleged  to  be  illegal.  The  principle  applicable  to  public 
nuisances  is  there  adopted.  Such  illegal  acts  are  considered 
to  affect  the  whole  public;  and  the  public,  by  its  authorized 
public  officers,  must  institute  the  proceeding  to  prevent  or  re- 
dress the  illegal  act,  unless  a  private  person  is  threatened  with  or 
suffers  some  peculiar  damage  to  his  individual  interest —  that 
is,  some  damage  distinct  from  that  of  every  other  inhabitant,  in 
which  case  he  may  maintain  his  bill  for  an  inj  unction  or  for  relief 
in  his  own  name.  Private  persons  may  thus  protect  their  own 
interests,  but  they  cannot  "  assume  to  be  the  champions  of  the 
community,  and  in  its  behalf  challenge  the  public  officers  to 
meet  them  in  the  courts  of  justice  to  defend  their  official  acts." 
Therefore,  an  illegal  alienation  of  property  by  a  corporation, 
or  an  illegal  act  which  may  or  will  result  in  increased  taxation, 

1  Colton  v.  Hanchett,  13  111.  615. 

2  Barr  v.  Deniston,  19  N.  H.  170,  180, 1848.  See,  also,  in  same  state,  Mer- 
rill v.  Plainfleld,  45  N.  H.  126 ;  supra,  Sec.  732,  and  note. 

8  Douglass  «.  Placerville,  18  Cal.  643. 

*  Drake  v.  Phillips,  40  111.  388, 1866.  Ante,  Sec.  103;  supra,  Sec.  732,  and 
note. 


CH.  XXII. J     ILLEGAL  CORPORATE  ACTS. —  REMEDY  IN  EQUITY.         685 

cannot  be  questioned  by  a  private  person,  or  tax-payer,  or 
property  owner,  unlessjit  be  specially  injurious  to  him.1 

§  736.  '  The  author  may  observe  that  there  appears  to  be 
no  difference  of  judicial  opinion  as  to  the  right  of  the  taxable  in- 
habitants, wherever  the  threatened  illegal  corporate  act  will  in- 

1  This  doctrine,  left  open  in  Ketchum  v.  Buffalo,  14  N.  Y.  356, 1856,  and 
13  ib.  143,  was  first  definitely  established  in  New  York  in  the  Court  of  Ap- 
peals, in  Doolittle  v.  Supervisors  of  Broome  County,  18  N.  Y.  155,  1858; 
disapproving,  on  this  point,  of  the  cases  of  Adriance  v.  Mayor  of  New  York, 
1  Barb.  (South  Car.)  19;  Brower  v.  Same,  3  ib.  254;  Christopher  v.  Same,  13 
ib.  567;  Milhau  v.  Sharp,  15  ib.  193 ;  J6.244 ;  and  De  Baum  v.  Mayor,  &c.  16 
ib.  392.  So  far  as  these  and  other  prior  New  York  cases,  hold  "  that  a  per- 
son owning  property  fronting  on  a  public  street  is  entitled  to  maintain  an 
action  to  restrain  the  commission  of  an  act  of  nuisance  in  the  street  which, 
from  the  location  of  the  plaintiff's  premises,  would  render  it  specially  inju- 
rious to  him,  I  am  of  opinion  that  the  law  is  correctly  laid  down  as  in 
Davis  v.  Mayor,  14  N.  Y.  506:''  Per  Denio,  J.,  18  N.  Y.,  supra,  p.  163,  and 
observe  street  cases  reviewed  on  page  160.  (See  ante,  Sec.  522.)  The  doc- 
trine of  this  case  was  adhered  to  and  extended  to  cities,  in  Roosevelt  v. 
Draper,  23  N.  Y.  318,  1861,  which  also  considers  the  question  when  relief 
may  be  had  by  a  creditor :  Hale  v.  Cushman,  6  Met.  425,  was  decided  upon 
the  principle  laid  down  in  New  York,  but  the  right  to  equitable  relief  against 
illegal  appropriations  is  now  given  by  statute  in  Massachusetts:  Frost  v. 
Belmont,  6  Allen,  152. 

The  municipal  corporation  must  be  a  party :  Allen  v.  Turner,  11  Gray, 
436.  City  collector  is  a  proper  defendant :  Anderson  v.  State,  23  Miss.  459, 
1852;  New -London  v.  Brainard,  22  Conn.  552,  1853. 

The  New  York  view  is  adopted  in  Kansas,  where  it  is  held  that  a  suit 
having  for  its  object  the  restraining  of  a  county  board  from  allowing  a 
claim  alleged  to  be  illegal,  and  the  clerk  from  drawing  a  warrant  therefor, 
cannot  be  maintained  by  a  person  having  no  other  interest  than  one  com- 
mon to  all  the  resident  tax-payers  of  the  county.  Such  a  suit,  it  is  further 
held,  cannot  be  maintained  by  a  private  person,  unless  the  act  complained 
of  produces  some  peculiar  damage  to  his  individual  interests,  or  affects  his 
rights  in  a  different  manner  from  other  members  of  the  community ;  Craft 
v.  Jackson  County,  7  Kansas,  not  yet  reported.  See,  also,  as  to  restraining 
void  tax :  Burnes  v.  Achison,  2  Kansas,  454, 1864 ;  compare,  Leavenworth  v. 
Norton,  1  ib.  432.  And  it  seems  to  be  followed  in  Minnesota:  Conklin  v. 
Commissioners,  13  Minn.  454.  The  subject  is  discussed  by  Mr.  Justice 
Campbell  in  Bagg  v.  Detroit,  5  Mich.  336,  346,  and  in  Chaffee  v.  Granger,  6 
Mich.  51 ;  Williams  v.  Detroit,  2  Mich.  560.  See  and  compare  Brown  v. 
Manning,  6  Ohio,  298;  Ib.  102;  Denton  1>.  Jackson,  2  Johns.  Ch.  320;  State 
v.  Commissioners,  5  Ohio  St.  497, 502;  Culbertson  v.  Cincinnati,  16  Ohio,  579. 
A  taxable  inhabitant  has  no  legal  right  to  intervene  in  a  pending  suit  and 
defend  the  action  prosecuted  against  the  corporation :  Cornell  College  v. 
Iowa  County,  Iowa  Supreme  Court,  Dec.  Term,  1871,  not  yet  reported. 


686  MUNICIPAL   CORPORATIONS.  [CH.  XXII. 

orease  the  burden  of  taxation,  to  the  aid  of  equity  to  prevent 
it.  The  difference  is  as  to  the  proper  party  plaintiff'  in  a  bill  of 
this  character.  If  the  ordinary  principle  is  applied,  it  must  be 
admitted  that  where  the  duty  about  to  be  violated  by  the  cor- 
poration or  its  officers  is  public  in  its  nature,  and  affects  all  of 
the  inhabitants  alike,  that  one,  not  suffering  any  special  injury, 
cannot,  in  his  own  name,  or  by  uniting  with  Others}  maintain  a 
bill  to  enjoin  it.  And  a  reason  urged  against  such  a  course  is, 
that  if  one  citizen  may  maintain  such  a  bill,  ah  indefinite  num- 
ber of  others  may  each,  also,  bring  separate  suits;  and  an  ad- 
judication in  one  case  concludes  nothing  as  to  the  others,  or  as 
to  the  inhabitants  at  large.  But  it  is  agreed  that  any  taxable 
inhabitant,  or,  perhaps,  any  citizen  of  the  municipality,  has 
such  an  interest  to  prevent  or  to  avoid  illegal  corporate  acts 
that  he  may  be  a  relator,  on  whose  application  the  proper  pub- 
lic officer  of  the  commonwealth  may,  oh  behalf  of  the  public, 
file  the  requisite  bill  to  enjoin  the  menaced  illegal  act,  or,  if  it  has 
been  consummated,  to  have  relief  against  it.  To  allow  the  taxa- 
ble inhabitant  to  maintain  a  bill  for  an  injunction,  has  the  ad- 
vantage of  directness  and  simplicity,  and,  notwithstanding  its  de- 
parture frorn  technical  principles^  has  had  the  quite  general,  but 
not  uniform,  approval  of  the  courts  in  this  country;  andpracti^ 
cally,  this  course  has  not  had  the  effect  to  engender  a  multiplicity 
of  similar  suits  by  separate  parties,  but  a  few  persons  usually 
unite  in  one  suit,  which,  when  judicially  settled,  in  effect  settles 
the  question  in  controversy.  There  can  be  no  doubt  but  that 
the  corporation  may,  in  its  own  name,  bring  suits  in  proper 
cases  to  be  relieved  against  illegal  or  fraudulent  acts  on  the 
part  of  its  officers.  Sirice,hOwever,  experience  has  shown  how 
liable  these  corporations  are  to  be  betrayed  by  those  who  have 
the  temporary  management  of  these  concerns,  it  would  never 
do  for  the  courts  to  hold  that  relief  against  illegal  acts  could 
only  be  had  by  an  authorized  suit  brought  by  and  in  the  name 
of  the  corporation.  i 

§  73? .  Respecting  the  right  to  restrain  a  municipal  corpora- 
Hug  from  collecting  taxes,  the  courts,  in  cases  where  this  relief 
is  proper  to  be  granted,  have  generally  held  that  one  or  more 
tax-payers  may  bring  a  bill  for  this  purpose.1  There  is,  how- 
ever, some  want  of  harmony  in  the  decisions  as  to  what  will 


CH.  XXII.J     ILLEGAL  CORPORATE  ACTS. — REMEDY  IN  EQUITY.         687 

justify  equitable  interference,  but  the  correct  view  doubtless 
is  that  equity  ought  not,  except  for  the  clearest  reasons,  to  in- 
terfere with  the  speedy  and  ordinary  collection  of  municipal 
or  other  public  revenues.  If  there  is  no  power  to  levy  the 
tax  in  question  under  any  circumstances,  or  if  it  be  assessed 
upon  property  not  subject  to  taxation,  and  the  remedy  at  law  is 
not  adequate,  a  plain  case  for  equitable  interposition  is  made 
out.  But  if  the  power  to  levy  the  tax  exist,  and  the  property 
be  subject  to  taxation,  mere  errors^  and  irregularities  should, 
according  to  the  better  considered  view,  be  corrected  on 
certiorari  or  other  appropriate  proceedings,  or  their  effect  left 
to  be  tested  at  law;  for  equity  ought  not  to  interfere  with  the 
collection  of  taxes,  unless  the  complainant  makes  a  case  com- 
ing within  some  acknowledged  head  of  equity  jurisdicton,  such 
as  the  prevention  of  a  multiplicity  of  suits,  irreparable  injury, 
or  where  a  cloud  will  be  thrown  upon  his  title  to  real  estate. 

}  The  right  of  tax-payers  to  unite  in  a  bill  and  ask  for  an  injunction  to 
restrain  the  collection  of  an  unauthorized  tax  was  expressly  ruled  in  Van- 
pver  v.  Justices,  &c.  27  Geo.  354, 1859,  Lumpkin,  J.,  observing:  "  We  approve 
the  remedy  resorted  to  in  this  case.  It  is  not  only  more  complete  than  any 
lOther,  but  the  only  one,  in  our  judgment,  which  meets  the  exigencies  of  the 
case."  See,  also,  Bull  v.  Read,  13  Gratt.  (Va.)  78 ;  Nill  v.  Jenkinson,  15  Ind. 
425;  Lewis  v.  Henley,  2  ib.  332;  Barr  v.  Deniston,  19  N.  H.  170,  180,1848; 
Frederick  v.  Augusta,  5  Geo.  561,  1848 ;  Baltimore  v.  Porter,  18  Md.  284, 
1861 ;  King  v.  Wilson,  1  Dillon  C.  C.  555, 1871.  Amount  of  tax  necessary  to 
give  federal  court  jurisdiction :  lb. 

In  Worth  ».  Fayetteville,  1  Winst.  (N.  Car.)  Law  &  Eq.  R.  No.  2,  70, 1804, 
C.  J.  Pearson,  with  great  difficulty  as  to  jurisdiction,  expressed  the  opinion 
,that  equity  might  entertain  a  bill  to  test  the  legality  of  a  tax  imposed  by  a 
paunicipal  corporation,  but  doubted  whether  such  a  bill  will  lie  to  enjoin 
the  collection  of  state  and  county  taxes.  The  case  does  not  show  that  the 
jillegal  tax  was  sought  to  be  made  by  the  sale  of  real  estate,  or  in  what 
jmanner  the  tax  was  about  to  be  enforced.  A  tax-payer,  on  behalf  of  him- 
self and  all  other  tax-payers  of  the  state,  may  file  a  bill  against  the  proper 
.state  officers  and  parties  to  enjoin  the  issue  of  state  bonds  under  an  uncon- 
stitutional statute:  Galloway  v.  Railroad  Company,  63  North  Car.  147, 1869. 
Jn  Indiana  it  is  considered  that  "the  assessment  of  taxes  for  state  purposes 
is  a  matter  of  public  concern  in  which  all  the  citizens  of  the  state  are  in- 
terested, and  hence  any  citizen  of  the  state  may  be  the  relator  "  in  pro- 
ceedings to  compel  officers  of  the  revenue  law  to  see  that  its  provisions  are 
carried  out :  State  v.  Hamilton,  5  Ind.  310,  1854,  per  Perkins,  J. ;  Hamilton 
,v.  State,  3  ib.  452. 


688  MUNICIPAL   CORPORATIONS.  [CH.  XXII. 

Unless  he  can  make  such  a  case  he  must  bring  a  legal  action 
or  pursue  a  legal  remedy.1 

§  738.  Accordingly,  equity  will  not  restrain  even  an  illegal 
and  void  tax  assessment  where  it  is  sought  to  be  enforced 
against  personal  property  only,  since  here  the  party  has  an  ade- 
quate remedy  at  law :  nor  in  such  a  case  will  equity  interfere 
because  several  join  in  the  bill  asking  it.2  Where,  however, 
the  effect  of  the  sale  will  be  to  cast  a  cloud  upon  the  title  to 
real  estate,  equity,  in  many  of  the  states,  will,  for  this  reason 
alone,  interfere  to  prevent  it.  The  Court  of  Appeals  in  Mary- 
land, in  holding  that  where  a  city  corporation  was  seeking  to 
enforce  a  void  tax  or  assessment  by  a  sale  of  .private  property, 
the  owner  might  enjoin  it,  speaking  through  Le  Grand,  0.  J., 
said:  "We  entertain  no  doubt  on  this  question.  The  idea 
that  a  party  ought  to  stand  by  and  see  his  property  illegally  ex- 
posed to  public  sale,  and  then  force  the  purchaser  to  bring  eject- 
ment to  gain  possession  or  to  try  his  title,  seems  sustained  by 
no  good  authority.  Such  a  doctrine  would  not  only  encourage 
circuity  of  action  and  multiplicity  of  suits,  but  render  the  title 
of  the  real  owner  comparatively  valueless,  while  the  suits  at 
law  should  be  pending.  Equity  will  not  allow  a  title  other- 
wise clear,  to  be  clouded  by  a  claim  which  cannot  be  enforced 

1  Dows  v.  Chicago,  11  Wall.  108, 1870;  approving,  Hey  wood  v.  Buffalo,  14 
N.  Y.  534, 1856;  Bank  v.  Supervisors,  25  N.  Y.  312 ;  Cook  County  «.  Rail- 
road Company,  35  111.  465.  These  cases  fully  support  the  doctrine  of  the 
text,  which  is,  indeed,  extracted  from  them.  See,  also,  McLot  v.  Davenport, 
17  Iowa,  379,  1864,  in  which  the  remedies  of  the  tax-payer  are  fully  pointed 
out  by  Cole,  J. :  Dodd  v.  Hartford,  25  Conn.  232 ;  Dean  v.  Todd,  22  Mo.  91 ; 
Lockwood  *>.  St.  Louis,  24  Mo.  20,  1856;  Hughes  v.  Kline,  30  Pa.  St.  227; 
Livingston  v.  Wider,  53  111.  302,  1870 ;  Green  v.  Mumford,  5  Rh.  Is.  472, 1858, 
where  the  rule  is  strictly  held,  that  to  warrant  a  resort  to  equity  the  reme- 
dy at  law  must  be  inadequate.  See  ante,  Sec.  476,  and  note ;  Sec.  522 ;  Sec. 
727,  735. 

Mode  of  collecting  taxes  and  assessments :  Ante,  Sec.  653,  et  seq. 

*  Dodd  v.  Hartford  (decided  by  two  judges),  25  Conn.  232, 1856 ;  Sheldon 
v.  School  District,  ib.  224.  Same  point,  as  to  personal  property :  Lockwood 
v.  St.  Louis,  24  Mo.  20, 1856 ;  Dows  v.  Chicago  (tax  on  bank  stock),  11  Wall. 
108, 1870.  Ante,  Sees.  654,  727,  and  notes.  Courts  will,  indeed,  in  all  cases, 
cautiously  interfere  with  the  exercise  of  an  admitted  power:  manifest 
abuse  must  be  shown :  Sheldon  v.  School  District,  25  Conn.  224.  Ante, 
Sec.  58,  and  notes  ;  Sec.  248  ;  Sec.  286. 


CH.  XXII.]     ILLEGAL  CORPORATE  ACTS. —  REMEDY  IN  EQUITY. 

in  law  or  equity."1  So  in  Wisconsin  the  law  is  settled  that 
equity  will  interfere  to  prevent  a  cloud  upon  the  plaintiff's 
title,  where  his  lands  are  threatened  to  be  sold  on  a  void 
tax  or  assessment.  But  where  the  defect  complained  of  is 
merely  formal,  not  impeaching  the  justice  of  the  tax  or  assess- 
ment, and  the  plaintiff  ought  to  pay  the  amount,  equity  will 
not  interfere,  but  leave  him  to  his  legal  remedies.2 

1  Holland  v.  Baltimore,  11  Md.  186,  1857 ;  Baltimore  v.  Porter,  18  Md. 
284, 1861.  Ante,  p.  92,  Sec.  45.  In  New  York,  the  somewhat  stricter  view 
is  adopted,  that  to  justify  equity  in  interfering  to  prevent  a  cloud  being 
cast  upon  the  title,  it  must  be  a  proceeding  whose  invalidity  does  not  ap- 
pear on  its  face,  but'requires  extraneous  evidence  to  show  it :  Hey  wood 
v.  Buffalo,  14  N.  Y.  534,  1856  ;  cited  with  approval,  Ewing  v.  St.  Louis,  5 
Wall.  413,  419,  1866.    Ante,  Sec.  476. 

2  Mitchell  v.  Milwaukee,  18  Wis.  92, 97, 1864,  and  prior  cases  in  that  state 
there  cited.  See,  also,  Foote  v.  Milwaukee,  18  Wis.  270 ;  Myrick  v.  La 
Crosse,  17  ib.  442 ;  Bond  v.  Kenosha,  17  Wis.  284,  287,  where  Cole,  J.,  very 
clearly  states  the  effect  of  the  decisions :  Howes  v.  Racine,  21  Wis.  514 ; 
Dean  v.  Gleason,  16  Wis.  1,  18;  Barnes  v.  Beloit  (who  may  not  join  in  bill), 
19  Wis.  93, 1865 ;  quxre. 

So  in  Iowa,  a  bill  for  an  injunction  to  restrain  sale  of  real  estate  may  be 
sustained  if  the  proceedings  to  tax  it  are  clearly  illegal :  Litchfield  v.  Polk 
County,  18  Iowa,  70 ;  Eailroad  Company  v.  Mt.  Pleasant,  12  ib.  112. 

In  Indiana  it  is  held  that  where  the  owner  of  real  estate  in  a  city  stands 
by  and  sees  a  street  improved  adjoining  his  property,  on  a  contract  made 
under  an  order  of  the  common  council,  without  attempting  by  injunction 
to  prevent  such  improvement,  he  cannot,  after  the  work  is  completed,  or 
nearly  completed,  refuse  to  pay  for  it :  La  Fayette  v.  Fowler,  34  Ind.  140 ; 
Same  principle :  Sleeper  v.  Bullen,  6  Kansas,  300, 1870.  Extension  by  the 
city  to  the  contractor  of  the  time  to  complete  the  improvement  is  no  ground 
for  an  injunction  to  stay  the  collection  of  the  assessment :  Ib.  So  where  an 
owner  of  property  sees  a  contractor  go  on  and  make  a  street  improvement 
adjoining  his  property,  under  a  contract  with  the  city,  and  makes  no  objec- 
tion while  the  work  is  being  done,  he  cannot,  after  the  work  is  completed, 
and  accepted  by  the  city  as  having  been  done  according  to  the  contract,  en- 
join the  collection  of  the  entire  assessments  made  for  such  improvement, 
on  the  ground  that  the  materials  used,  and  the  work  done,  were  not  strictly 
in  accordance  with  the  contract;  in  such  case,  a  complaint  for  an  injunction 
must  show  a  tender,  by  the  property  owner  to  the  contractor,  of  the  value 
of  the  improvement :  Evansville  v.  Pfisterer,  ib.  See,  also,  as  to  effect  of 
delay  in  equity,  until  the  improvement  is  completed :  Weber  *.  San  Fran- 
cisco, 1  Cal.  455.  Infra,  Sec.  743,  note.  So,  also,  in  Kansas  it  is  decided 
that  courts  of  equity  will  not  interfere  to  restrain  by  injunction  the  collec- 
tion of  taxes,  when  the  property  is  subject  to  taxation,  the  tax  legal,  and 
the  valuation  not  excessive,  simply  because  of  irregularities  in  the  assess- 
ment :  Kansas  P.  R.  Co.  v.  Russel,  1871,  not  yet  reported.  See,  also, 
Sleeper  v.  Bullen,  6  Kansas,  300,  1870. 
87 


690  MUNICIPAL   CORPORATIONS.  [CH.  XXII. 

Remedy  by  Certiorari. 

739.  It  is  well  settled  in  England  that  courts  of  superior 
and  general  jurisdiction  will  examine  on  certiorari  the  proceed- 
ings of  inferior  or  special  jurisdictions  or  officers.  Thus,  certi- 
orari lies  to  the  censors  of  the  college  of  physicians,1  to  com- 
missioners of  sewers,2  and  to  justices  of  the  peace.3  Such  a 
superintending  power  to  restrain  and  correct  the  irregularities 
and  mistakes  of  inferior  officers  and  jurisdictions  is  both  neces- 
sary and  salutary.  If  the  proceedings  are  in  a  common  law 
court  of  record,  a  writ  of  error  is  the  proper  remedy  to  correct 
or  vacate  them  if  erroneous;  otherwise,  the  .remedy  is  by  cer- 
tiorari.1' So,  in  this  country,  the  rule  has  been  very  generally 
adopted  by  the  courts,  where  a  new  jurisdiction  is  created  by 
statute,  and  the  inferior  court,,  board,  tribunal,  or  officer  exer- 
cising it,  proceeds  in  a  summary  manner,  or  in  a  course  differ- 
ent from  the  common  law,  that  the  circuit  or  district  court  of 
the  state,  or  other  tribunal  exercising  general  original  common 
law  jurisdiction,  has,  in  the  absence  of  ii  specific  remedy  being 
given,  an  inherent  authority  to  revise  the  proceedings  of  such 
inferior  jurisdiction  by  certiorari;  and  in  such  cases  a  writ  of 
error  is  not,  without  the  aid  of  statute,  the  proper  remedy  to 
effect  the  removal  of  the  proceedings  to  the  revisory  tribunal.5 

§  740.  The  unquestionable  weight  of  authority  in  this 
country  is,  if  an  appeal  be  not  given,  or  some  specific  mode  of 
review  provided,  that  the  superior  common  law  courts  will,  on 
certiorari,  examine  the  proceedings  of  municipal  corporations,  even 

1  Groenvelf  v.  Burwell,  1  Ld.  Raynu  454,  469,  and  cases  there  cited;  1 
Salk.  144. 

*  Ibid. 

s  Eex  v.  Inhabitants  (Caerdiffe  Bridge  Case),  1  Ld.  Raym.  580. 

*  Parks  v.  Boston,  8  Pick.  218,  226,  1829  ;  Lawton  v.  Commissioners,  &c.  2 
Caines,  182;  Wood  v.  Peake,  8  Johns.  54;  Wildy  v.  Washburn,  16  Johns.  49. 

5  Ante,  p.  361,  Sec.  368;  p.  458,  Sec.  476;  Intendant,  &c.  t>.  Chandler,  6 
Ala.  899,  1844 ;  Ex  parte  Tarlton,  2  Ala.  35,  1841.  In  Matter  of  Negus,  10 
Wend.  34,  39,  1832;  Ruhlman  v.  Commonwealth, 5  Binn.  26,  18i2;  Savages. 
Gulliver,  4  Mass.  178 ;  Commonwealth  v.  Ellis,  11  ib.  465;  Edgaf  v.  Dodge  ib. 
670;  Ballu.  Brigham,"  5  Mass.  406 ;  Bob  (aslave)  v.  State, 2  Yerg,  (fenn.)173, 
1826 ;  Lawson  v.  Scott,  1  i6.  92 ;  Wildy  e.  Washburn,  16  Johns.  49 )  Street  v. 
Francis,  3  Ohio,  277 ;  State  v.  Bill,  13  Ire.  Law  (North  Car.),  373,  1852 ;  Bed- 
field  on  Railw.  Chap.  XXVI. 


CH.  XXII.]        ILLEGAL  CORPORATE  ACTS. —  CERTIORARI.  691 

although  there  be  no  statute  giving  this  remedy ;  and  if  it  be 
found  that  they  have  exceeded  their  chartered  powers,  or  have 
not  pursued  those  powers,  or  have  not  conformed  to  the  re- 
quirements of  the  charter  or  law  under  which  they  have  under- 
taken to  act,  such  proceedings  will  be  reversed  or  annulled. 
An  aggrieved  party  is,  in  such  case,  entitled  to  a  certiorari  ex 
debito  justitice.1 

Thus,  if  no  appeal  or  other  mode  of  review  be  given,  and  if 
there  be  no  statute  to  the  contrary,  the  legality  of  convictions 
in  manieipal  courts  will  be  revised  on  certiorari2  So,  under  the 
same  circumstances,  and  in  the  same  way,  the  proceedings  of 
municipal  corporations  in  opening  streets,3  in  making  local  assess- 

1  State  v.  Bill,  13  Ire.  (North  Car.)  Law,  373, 1852 ;  Intendant  v.  Chandler, 
6  Ala.  899,  1844;  Carroll  v.  Mayor,  &c.  12  Ala.  173 ;  Jackson  v.  People,  10 
Mich.  Ill,  1860,  cited  ante,  p.  362,  note ;  State  v.  Stewart,  5  Strob.  (South 
Car.)  Law,  29;  State  v.  Swift,  1  Hill  (South  Car.)  360;  Dwight  v.  Springfield, 
4  Gray,  107,  1855 ;  Parks  v.  Boston,  8  Pick.  218,  1829 ;  Fay,  Petitioner,  15 
Pick.  243,  1834 ;  Cunningham  v.  Squires,  2  West  Va.  422, 1868 ;  Taylor  «, 
Americus,  39  Ga.  59, 1869;  Mayor  a.  Shaw,  16  Ga.  172, 1854;  Shaw  v.  Mayor, 
19  Ga.  468  ;  Burns  v.  La  Grange,  17  Texas,  415,  1856 ;  Buckner,  Ex  parte,  4 
Eng.  (Ark.)  73,148;  Camden  v.  Mulford,  2  Dutch.  (N.  J.)  49 ;  Carron  v. 
Martin,  ib.  594,  1857 ;  Morris  Canal  Company  v.  Jersey  City,  1  Beasley  (N, 
J.),  252 ;  Holmes  v.  Jersey  City,  ib.  299 ;  State  v.  Newark,  1  Dutch,  399, 1856 ; 
State  v.  Hudson,  32  N.  J.  365;  Swan  v.  Cumberland,  8  Gill  (Md.),  150, 1849  ; 
Dorchester  v.  Wentworth,  11  Fost,  (N.  H.)  451 ;  B,ailroad  Company,  v. 
Whipple,  22  111.  105 ;  Ewing  v.  St.  Louis,  5  Wall,  413„  1866,  Ante,  p.  361, 
Sec.  368 ;  p.  458,  Sec.  476  ;  p.  606,  Sec.  643. 

2  Taylor  v.  Americus,  39  Ga.  59, 1869 ;  Intendant  v..  Chandler,  6  Ala.  899, 
1844 ;  Jackson  v.  People,  10  Mich.  Ill,  1860.  Aitfp,  Sec.  368,  and.  note,  and 
remarks  of  Mr.  Justice  Campbell. 

3  Ex  parte  Tarlton,  2  Ala.  35 ;  Dwight  v.  Springfield,  4  Gray,  107  ;  Carron 
v.  Martin,  2  Dutch.  (N.  J.)  594, 1857  ;  Dorchester  y.  Wentworth,  \l  Post.  (N. 
H.)  451 ;  Parks  v.  Boston,  8  Pick.  218,  225;  Ewing  p.  St,  Louis,  5  Wall.  413, 
1866,  cited  ante,  Sec.  476,  note. 

It  seems  to  be  the  settled  view  in  New  York,  that  without  a  statutory 
enlargement  of  the  functions  of  the  writ  of  certiorari,  it  will  be  denied,  or 
if  granted,  it  will  be  quashed  when  it  is  sough,t  for  the  purpose  of  reviewing 
the  official  or  corporate  proceedings  of  a  common  council  when  they  are  of 
a  legislative,  executive,  or  ministerial  character ;  as,  for  example,  the  regu- 
larity of  proceedings  by  ordinances  or  resolutions  under  the  right  of  emi- 
nent domain  to  open  streets,  squares,  &c.  and  for  constructing  sew«rs  in 
streets,  and  the  like  improvements,  including  assessments  therefor ;  and 
the  regularity  of  proceedings  voting  taxes,  appointing  officers,  making,  by- 
laws, &c.  &c:  People  v.  Mayor,  &c.  2  Hill  (N.  Y.),  9,  1841.  In  Matter  of 
Mount  Morris  Square,  ib.  14,  questioning  Parks  v.  Boston,  supra,  which  holds 


692  MUNICIPAL   CORPORATIONS.  [CH.  XXII. 

meats,  or  levying  taxes,1  in  contested  election  cases,2  and  the  like, 
■vyill  be  examined  and  reviewed,  to  ascertain  whether  they  are 
legal  and  regular,  and  if  not  so,  they  will  be  quashed. 

§  741.  At  common  law  certiorari  only  lies  to  interior  courts 
and  officers  exercising  judicial  powers  ;  not  only  so,  but  the 
act  to  be  reviewed  must  be  judicial  in  its  nature,  and  not  merely 
ministerial.3  But  the  doctrine  that  certiorari  lies  only  to  exam- 
ine the  validity  of  such  ordinances  and  acts  of  a  muricipal  cor- 
poration as  are  of  &  judicial  character,  and  not  such  as  are  legis- 
lative or  ministerial  in  their  nature  is  not  adopted  in  New 

that  proceedings  to  open  streets  may  be  reviewed  on  certiorari,  and  also, 
doubting  Le  Roy  v.  Mayor,  &c.  20  Johns.  430,  and  Baldwin  v.  Calkins,  10 
Wend.  166,  so  far  as  the  latter  asserts  that  the  principle  of  assessment  may  be 
reviewed  by  certiorari.  It  is  admitted,  however  (2  Hill,  24),  that  the  writ 
will  lie  to  the  local  courts  or  corporate  officers  exercising  judicial  functions. 
See,  further,  as  to  remedy  by  certiorari :  People  v.  Supervisors,  15  Wend. 
198 ;  Same  v.  Same,  1  Hill,  195 ;  23  Wend.  277 ;  Stone  v.  Mayor,  25  Wend. 
157, 167,  per  Paige,  Senator ;  lb.  693.  The  doctrine  of  the  New  York  cases 
denying  that  the  proceedings  of  municipal  corporations  in  opening  streets, 
making  assessments,  &c.  can  be  reviewed  on  certiorari,  followed  in  Dixon 
v.  Cincinnati,  14  Ohio,  240,  1846,  but  the  weight  of  authority  is  otherwise. 
See  chapter  on  Eminent  Domain,  ante,  Sec.  476. 

1  State  v.  Newark,  1  Dutch.  (N.  J.)  399, 1856;  Swann  v.  Cumberland,  8 
Grill  (Md.),  150,  1849 ;  Buckner,  Ex  parte,  4  Eng.  (Ark.)  73,  ,1848  ;  Carroll  v. 
Mayor,  &c.  12  Ala.  173.    Ante,  p.  606,  Sec.  643,  and  note  4. 

Certiorari  lies  at  common  law  to  remove  a  tux  assessment,  but  as  the  allow- 
ance of  the  writ  is  discretionary,  it  is  generally  refused  on  grounds  of  pub- 
lic policy  and  convenience.  Per  Beardsley,  J.,  Weaver  v.  Devendorf,  3 
Denio,  117-119;  15  Wend.  198  ;  1  Hill  (N.  Y.),  195;  2  Hill,  9, 11;  J6.14- 
21.  But  it  ought,  we  think,  to  be  freely  allowed  whenever  necessary  to 
protect  the  citizen  in  his  legal  rights.  Effect  of  not  resorting  to  certiorari 
on  the  right  to  an  injunction  against  assessments  for  local  improvements  : 
Ottawa  v.  Railroad  Company,  25  111.  43,  1860 ;  Ewing  v.  St.  Louis,  5  Wall, 
413. 

2  Cunningham  v.  Squires,  2  West  Va.  422,  1868.  Further,  as  to  power  to 
review  on  certiorari  the  regularity  of  the  proceedings  of  inferior  tribunals 
in  cases  of  contested  elections:  Gibbons  v.  Sheppard,  65  Pa.  St.  20,  1870  ;  S. 
C,  Brightley's  Election  Cases,  538.  Ante,  Chap.  IX.  on  Municipal  Elections ; 
also,  p.  361,  Sec.  368  ;  Sec.  715. 

?  Bacon's  Abr.  Certiorari,  B. :  -Eepple,  &c.  v.  Mayor,  &c.  of  New  York,  2 
Hill  (N.  Y),  9;  11  ib.  21,  1841.  -Street  and  assessment  cases:  People,®. 
Covert,  1  Hill,  674.  In  Fonda  v.  Canal  Appraisers,  1  Wend.  288,  a  certiorari 
-was  granted  where  the  damages  of  a  party  were  appraised  without  notice, 
Wd  ^jthput giving  him  an  opportunity  to  be  heard  or  to  produce  testimony, 


CH.  XXII.]        ILLEGAL  CORPORATE  ACTS. —  CERTIORARI.  693 

Jersey,  but  in  that  state  this  writ  has  long  been  used  to  test 
the  validity  of  the  acts  and  ordinances  of  such  corporations, 
whatever  their  nature,  whether  legislative,  ministerial,  or 
judicial,  and  is  considered  ordinarily  to  be  the  appropriate 
remedy ;  but  equity  will  also,  in  proper  cases,  entertain  juris- 
diction.1 And  in  other  states  the  powers  with  which  the  mu- 
nicipal authorities  are  clothed,  to  be  exercised  whenever  in 
their  opinion  the  convenience  or  welfare  of  the  inhabitants 
requires  it,  are  considered  to  be  judicial,  and  hence  certiorari 
lies  to  remove  proceedings  thereunder  to  the  proper  court  for 
examination ;  but  if  the  local  authorities  have  decided  that  the 
public  convenience  or  welfare  requires  the  exercise  of  the 
power,  as,  for  example,  the  establishment  or  improvement  of 
a  street,  the  decision  of  such  a  question  cannot  be  judicially 
revised  on  certiorari.2  This  is  so  for  the  reason  that  questions 
of  this  character  are  not  judicially  reviewable,3  and  for  the 
further  reason  that  certiorari,  unless  otherwise  provided  by  stat- 
ute, only  lies  to  correct  errors  of  law  in  inferior  jurisdictions. 
Where  an  appeal  is  allowed,  it  in  general,  takes  up  the  cause 
or  proceeding  for  determination  de  novo,  unless  otherwise 
ordered  by  statute ;  but  certiorari  is  not  a  substitute  for  an  ap- 
peal, and  is  not  designed  to  correct  errors  of  fact.1 

1  Camden  v.  Mulford,  2  Dutch.  (N.  J.)  49, 1856  ;  Carron  v.  Martin,  ib.  594, 
1857 ;  Morris  Canal  Company  v.  Jersey  City,  1  Beasley  (N.  J.),  252 ;  Holmes 
v.  Jersey  City,  ib.  299.  Further,  as  to  office  of  the  writ :  State  o.  Hudson, 
32  N.  J.  365 ;  State  v.  Donahay,  1  Vroom,  404 ;  Jersey  City  v.  State,  ib.  521 ; 
State  v.  Water  Commissioners,  ib.  247.  Supra,  Sec.  727,  and  note.  What 
acts  are  judicial,  and  what  ministerial,  in  their  nature  ;  Camden  v.  Mul- 
ford, supra. 

1  Dwight  v.  Springfield,  4  Gray,  107,  1855 ;  Parks  v.  Boston,  8  Pick.  218, 
1829 ;  Stone  v.  Boston,  2  Met.  (Mass.)  220 ;  Fay,  Petitioner,  15  Pick.  243, 
1834 ;  Monterey  v.  Commissioners,  7  Cush.  394,  1851.  Ante,  Sec.  58.  In 
Georgia,  certiorari  was  held  to  lie  to  a  city  council  that  accused,  tried,  and 
dismissed  a  city  officer  for  alleged  official  neglect,  the  constitution  provid- 
ing that  the  superior  courts  "  shall  have  power  to  correct  errors  in  inferior 
judicatories,  by  writ  of  certiorari,"  and  the  council,  in  trying  and  dismissing" 
their  officer,  being  regarded  as  a  judicatory :  Mayor,  &c.  v.  Shaw,  16  Ga. 
172, 1854.    See  Shaw  v.  Mayor,  &c.  19  ib.  468. 

3  Ante,  Sees.  58,  728. 

4  State  «/.  Bill,  13  Ire.  (North  Car.)  Law,  373 ;  State  «.  Stewart,  5  Strob. 
(South  Car.)  29;  State  v.  Swift,  1  Hill  (South,  Car.),  360  ;  State  v.  Cockrell, 
2  Rich.  (South  Car.)  6     JPotf,  Sec.  742. 


694  MUNICIPAL   CORPORATIONS.  [CH.  XXI. 

§  742.  Although  there  is  some  contrariety  of  opinion  as  to 
just  what  the  writ  removes,  and  as  to  whether  the'  evidence,  if 
certified,  can  he  considered  at  all,  the  more  liberal  and  better 
view  is,  that  the  revisory  court  may  not  only  inquire  into  the 
jurisdiction  of  the  inferior  tribunal,  but  into  errors  of  law  occurring 
in  the  course  of  the  proceedings  and  affecting  the  merits  of  the 
case,  and  may  also  examine  the  evidence  embodied  in  the  re- 
turn, "not  to  determine  whether  the  probabilities : preponder- 
ate one  way  or  the  other,  but  simply  to  determine  whether  the 
evidence  is  such  that  it  will  justify  the  finding  as  a  legitimate 
inference  from  the  facts  proved,  whether  that  inference  would 
or  would  not  have  been  drawn  by  the  superior  tribunal."  l 

§  743.  .  From  inferior  jurisdictions  or  an  appeal  writ  of 
error  exists  only  as  it  is  provided  by  law,  but  where  a  remedy 
by  writ  of  error  or  by  appeal  is  given,  a'  common  law  certiorari 
cannot  be  sustained.2    But  if  an  appeal  where  it  exists  is  im- 

1  Jackson  v.  People,  10  Mich.  Ill,  1860,  where  the  subject  is  fully  and 
ably  examined '  by  Mr.  Justice  Campbell,  and  the  propositions  of  the  text 
fortified  by  the  authorities  cited.  In  Massachusetts  it  is  held,  that  the  Su- 
perior Court,  on  certiorari,  can  only  examine  into  the  regularity  and  legality 
of  the  proceedings ;  that  is,  whether  the  inferior  jurisdiction  has  pursued 
the  powers  granted  and  conformed  to  the  requirements  of  the  law  under 
which  it  professes  to  act.  Ante,  p.  362,  note ;  Parks  v.  Boston,  8  Pick.  218 ; 
Dwight  v.  Springfield,  4  Gray,  107 ;  Fay,  Petitioner,  15  Pick.  243.  In  New 
York  a  stricter  view  seems  to.  prevail,  and  it  is  held  that  the  supervisory 
court  is  confined,,  if  its  powers  are  not  enlarged  by  statute,  to  an  examina- 
tion "to  see  whether  the  limited  (or subordinate)  jurisdiction  have  exceed- 
ed their  bounds,"  kept  within  the  limits  of  its  jurisdiction.  The  pase  cannot 
be  re-tried  upon  the  evidence  or  its  merits.  The  record  alone,  or  that 
which  stands  for  it,  is  regarded :  People,  &c.  v.  Mayor,  &c.  of  New  York,  2 
Hill,  9,  1841;  In  Matter  of  Mount  Morris  Square,  2  Hill,  14;  1  Hill,  674; 
Stone  v.  Mayor,  &c.  25  Wend.  157,  167,  and  authorities  cited  by  Paige,  Sen- 
ator; Peoples.  Eochester,  21  Barb.  656;  S.  P.  2  Hill,  27,  jand  cases  there 
cited;  Bex  v.  Morely,  2  Burr.  1040,  1042;  25  Wend.  168,  and  authorities 
there  cited;  Ex  parte  Mayor,  &c.  23  Wend.  277,  and  cases  cited  and  com- 
mented' on  by  Cowen,  J. ;  6  Wend.  565. 

2  Duggen  v.  McGruder,  Walk.  (Miss.)  112;  Rundle  v.  Baltimore,  28  Md. 
356, 1867 ;  Stormy.  Odell,  2  Wend.  287 ;  State  v.  Wakely,  2  Nott  <%  McC.  410 ; 
In  Matter  of  Mount  Morris  Square,  2  Hill  (N.  Y.),  14,  27,  and  the  many 
authorities  cited  by  Cowen,  J.;  and  it  was  there  held  that  the  right  of  op- 
posing in  the  Supreme  Court  the  report  of  the  commissioners  qf  estimate 
and  assessment  in  prqeeedings  to  open  and  widen  streets,  was  in  the  nature 
of  a  remedy  by  appeal,  aad  therefore  certiorari  would  not  lie  to,  review  their 


CH.  XXII.]        ILLEGAL  CORPORATE  ACTS.--*- PROHIBITION.  6.95 

properly  denied,  or  if  the  party  is  deprived  of  it  by  fraud,  or 
accident,  lie  may  have  his  whole  case  reviewed  by  a  certiorari, 
both  as  to  matters  of  law  and  fact;  and  where  the  right  of  ap- 
peal is  not  allowed,  or  does  not  exist,  the  aggrieved  party  is 
still  entitled  to  have  his  case  revised  by  a  superior  tribunal.1 

Remedy  by  Prohibition. 

§  744.  In  some  of  the  states  the  writ  of  prohibition  is  resort- 
ed to  to  prevent  municipal  corporations  from  transcending  the 
bounds  of  their  jurisdiction  or  exercising  powers  not  conferred.2 
A  manifest  difference  between  the  writ  of  prohibition  and  the 
writ  of  inj unction  is  this :  the  former  operates  upon  the  court, 
and  the  judge  or  officers  who  disregard  it  may  be  punished; 
the  latter  operates  upon  the  party  alone,  but  does  not  interfere 

proceedings.  See,  also,  People  v.  Covert,  1  Hill,  674.  Ante,  Sec.  139;  Sec. 
368;  Sec.  476.  So, delay  may  defeat  right  to  a  certiorari:  Eluoendorf  v.  May- 
or, &c.  25  Wend.  693,  adopting  analogy  of  statute  relative  to  writs  of  error. 
Supra,  p.  607,  note;  Sec.  738,  note.  Writ  h&io  directed:  Bogart  v.  Mayor,  &c. 
7  Cow.  158.    Practice  under  writ:  Mayor  v.  Shaw,  14  Geo.  162. 

1  State  v.  Bill,  13  Ire.  (Law)  North  Car.  373,  1852.  As  to  right  and  man- 
ner of  appeals  by  municipal  corporations,  see,  generally,  chapter  on  Muni- 
cipal Courts,  ante,  Sees.  361,  367,  368 ;  also,  Pottsville  v.  Curry,  32  Pa.  Si 
443 ;  Robinson  v.  County,  6  Watts  &  S.  16 ;  Monaghan  v.  Philadelphia,  4 
Casey,  207.  Supersedeas  necessary  to  stay  proceedings  to  open  street :  Dus- 
seau  v.  Municipality,  6  La.  An.  575. 

2  Mayo  v.  James,  12  Gratt.  (Va.)  17;  Warwick  v.  Mayo,  15  ib.  528;  Clay- 
ton v.  Heidelberg,  9  Sm.  &  Marsh.  623.  In  Arkansas  the  writ  does  not  lie 
where  the  inferior  court  has  jurisdiction  of  the  subject  matter  on  a  sugges- 
tion of  erroneous  proceedings:  Blackburn,  ex  parte,  5  Ark.  21.  The  reports 
of  judicial  decisions  in  South  Carolina  show  that  it  is  the  constant  practice 
in  that  state  to  restrain,  by  prohibition,  not  only  inferior  judicial  tribunals, 
but  also  municipal  corporations  and  corporations  sub  modo  from  the  exer- 
cise of  unwarranted  powers,  or  the  imposition  of  penalties  beyond  their 
jurisdiction:  State  v.  Commissioners  of  Roads,  1  Const.  R.  1817,  55,  where 
the  subject  is  fully  examined;  McKee  v.  Town  Council,  Rice  Law,  24, 
1838;  City  Council  v.  Pinckney,  1  Const.  R.  1812,  p.  42;  S.  C.  3  Brev.  217 ; 
Zylstra  v.  Charleston,  1  Bay,  382.  If  an  appeal  is  given,  that  course  is  the 
proper  one  for  the  aggrieved  party  to  pursue  if  he  wishes  a  trial  de  novo, 
and,  in  general,  he  is  entitled  to  a  certiorari,  if  he  has  no  other  remedy,  in 
order  to  review  errors  of  law  committed  by  the  inferior  jurisdiction :  State 
v.  Wakely,  2  Nott  &  McCofd  (South  Car.),  410,  1820;  State  v.  Cockrell,  2 
Rich.  (South  Car.)  Law,  6,  per  Dvans,  J. ;  McDonald  v.  Elfe,  1  Nott  &  McC . 
501. 


696  MUNICIPAL   CORPORATIONS.  [CH.  XXII. 

with  the  court  itself.1  Where  prohibition  is  a  proper  remedy, 
the  writ  will  not  be. granted  unless  the  party  is  in  danger  of 
being  injured  by  a  suit  actually  depending;  it  will  not  be  grant- 
ed because  such  a  suit  is  threatened.2 

Remedy  by  Indictment, 

§  745.  It  is  a  clear  principle  of  the  English  law,  that  all 
corporations,  municipal  as.  well  as  private,  which  owe  duties 
to  the  public,  are  liable  to  indictment  for  malfeasance  as  well 
as  nonfeasance  in  respect  to  such  duties.  The  duty,  however, 
must  be  one  which  is  devolved  on  the  corporation  by  pre- 
scription or  by  statute — it  must  be  a  duty  or  obligation  of  a 
public  nature,  and  one,  it  is  supposed  by  the  author,  manda- 
tory in  its  nature,  and  not  discretionary.  This  method  of  re- 
dress on  the  part  of  the  public  against  municipal  corporations 
is  most  frequently  resorted  to  for  their  failure  to  maintain  ahd 
repair  bridges  or  highways  in  compliance  with  a  prescriptive 
duty  or  statutory  command;  but  the  principle  is  general  in  its 
character  within  the  limits  above  indicated.3 

1  Mealing  i).  Augusta,  Dudley  (Geo.),  221,  1833.  Where  a  city  council  is 
not  a  court,  but  is  exercising  the  powers  given  to  it  as  the  governing  bpdy 
of  the  corporation,  it  is  not  such  a  tribunal  as  can,  in  the  opinion  of  the 
Superior  Court  of  Georgia,  be  reached  by  prohibition:  Mealing  v.  Augusta, 
Dudley,  221. 

2  Mealing  v.  Augusta,  Dudley  (Geo.),  221,  1833. 

Respecting  the  nature  of  the  writ,  of  prohibition  and  the  practice  under  it: 
Mayo  *.  James,  12  Gratt.  (Va.)  17;  3  Black.  Com.  112;  8  Bac.  Abr.  206,  title, 
Prohibition;  7  Corny.  Dig.  135,  same  title;  Home  v.  Earl  Camden,  2  H.  Bl. 
533;  Gould  v.  Gapper,  5  East,  345;  1  Saund.  136,  and  notes ;  Ex  parte  Wil- 
liams, 4  Pike  (Ark.),  537,  and  note,  giving  forms  used  in  the  proceeding; 
Arnold  4).  Shields,  5  Dana  (Ky  ),  18;  Clayton  ».  Heidelberg,  9  Sm.  &  Marsh. 
623,  1848,  where  the  office  of  the  writ  is  discussed. 

3  Mayor,  &c.  of  Lyme  v.  Henley,  3  B.  &  Ad.  77 ;  S.  C.  2  Clark  &  Fin.  331 ; 
Calls.  Sewers,  116,  117 ;  Regina  v.  Railway  Company,  9  Q.  B.  315  ;  9  Ad.  & 
Ell.  (N.  S.)  314 ;  Rex  v.  Mayor,  &c.  14  East,  348 ;  Grant,  Corp.  283 ;  Rex  v. 
Railroad  Company,  9  Car.  &  P.  469;  Rex  v.  Oxfordshire,  16  East,  223;  1 
Kyd,  225,  226;  6  Maule  &  Selw.  365,  note.  Ante,  p.  212,  note ;  Sec.  505,  and 
notes.  See  Regina  v.  Nott,  4  Q.  B.  773  Other  mode  of  -enforcing  such  du- 
ties, see  chapter  on  Mandamus,  ante,  Sec. 

Appearance  is  enforced  by  distress ;  Regina  v.  Railway  Company,  3  Ad. 
&  Ell.  (N.  S.)  223.  And,  upon  conviction,  the  corporation  may  be  fined: 
lb.  Upon  an  indictment  against  a  town  for  not  making  or  repairing  a 
highway,  the  town  cannot  object  that  the  record  of  the  laying  out  of  the 


CH.  XXII.]        ILLEGAL  CORPORATE  ACTS. INDICTMENT.  697 

§  746.  In  this  country  the  same  principles  have  been  recog- 
nized; and  corporations  are  generally  regarded  as  indictable 
for  misfeasance,  as  well  as  non-feasance,  respecting  duties  of  a 
public  nature,  plainly  enjoined  by  the  legislature  for  the  benefit 
of  the  public.  The  modern  view  is  to  assimilate  corporations 
as  to  their  duties  and  responsibilities,  so  far  as  possible,  to 
individuals.  It  is  admitted  that  they  cannot  be  indicted  for 
felonies,  but  it  is  clear  that  they  may  be  for  acts  done  to  the 
injury  and  annoyance  of  the  public,  and  which  amount  to  a 


§  747.  In  Tennessee  a  municipal  corporation  is  considered 
liable,  upon  the  general  principles  of  the  common  law,  to  in- 
dictment for  neglecting  its  duty  to  keep  its  streets  in  reasonable  repair, 
and  it  is  no  defence  that  the  street  is  little  used,  and  is  in  a 
remote  part  of  the  town.2  And  the  mayor  and  aldermen  may 
also  be  personally  indicted  for  like  neglect  of  duty.3    So  in  the 

road  shows  that  one  of  the  land  owners,  over  whose  land  the  road  was  laid, 
was  not  notified.  Such  an  objection  should  be  made  before  the  road  was 
finally  established  :  State  v.  Eaymond,  7  Post.  (N.  H.)  388,  1853.  Notice: 
Ante,  Sec.  471. 

Twenty  years  acquiescence,  on  the  part  of  a  town,  in  the  doings  of  their  se- 
lectmen in  the  laying  out  of  a  highway  and  the  making  of  repairs  during 
that  period,  estop  the  town  when  indicted  from  claiming  that  the  road  was 
not  legally  laid  out:  State  v.  Boscawen,  32  N.  H.  331, 1855.  See  ante,  chap- 
ter on  Dedication,  Sees.  500,  505. 

1  Commonwealth  v.  Proprietors  of  Bridge,  2  Gray,  339,  and  cases  cited ; 
Commonwealth  v.  Railroad  Corporation,  4  Gray,  22, 1855.  Freeholders,  &c. 
v.  Strader,  3  Harr.  (N.  J.)  108 ;  State  v.  Railroad  Company,  3  Zabr.  (N.  J.) 
360 ;  State  v.  Hudson  County,  1  Vroom  (N.  J.),  137,  1862,  cited  infra ;  State 
v.  Railroad  Company,  27  Vt.  103;  Phillips  v.  Commonwealth,  44  Pa.  St.  197 ; 
Redfleld  on  Railways,  Chap.  XXIX.  It  is  held  in  Massachusetts  that  a 
railroad  constructed  over  a  public  highway  in  such  a  manner  as  to  obstruct 
-the  public  travel  is  liable  to  indictment,  this  being  the  proper  redress  for 
"the  public :  Commonwealth  v.  Railroad  Corporation,  2  Gray,  54,  1854 ; 
Cambridge  v.  Railroad  Company,  7  Met.  70.  See  Railroad  Company  v. 
State,  3  Head  (Tenn.),  523. 

*  Chattanooga  v.  State,  5  Sneed  (Tenn.),  578, 1858;  State  v.  Barksdale,  5 
Humph.  (Tenn.)  154 ;  State  v.  Mayor,  11  ib.  217,  where  form  of  indictment 
is  given.    Post,  Chap.  XXIII.  as  to  repairs  of  streets. 

"  Hill  v.  State,  4  Sneed  (Tenn.),  443, 1857. 

And  in  Pennsylvania  an  indictment  lies  as  at  common  law  against  public 
officers  for  neglect  of  public  duties ;  and  the  principle  was  extended  to  a 
contractor  for  the  repair  of  roads :  Phillips  v.  Commonwealth,  44  Pa.  St.  197. 
88  V 


698  MUNICIPAL   CORPORATIONS.  [CH.  XXII. 

same  state  it  is  held,  upon  the  general  principles  of  the  law, 
that  if  a  municipal  corporation  has  power  by  its  charter  to  pass 
such  ordinances  as  may  be  necessary  "  to  preserve  the  health  of 
the  town,  and  to  prevent  and  remove  nuisances,"  it  is  its  posi- 
tive duty  to  exercise  this  power,  and  that  for  a  neglect  of  this 
public  duty  it  or  its  officers  are  liable  to  an  indictment.  An  in- 
dictment against  the  mayor  and  aldermen  was  accordingly 
sustained  for  permitting  a  slaughter  house  to  be  kept  upon  the 
private  property  of  a  citizen  of  the  town  to  the  annoyance  of 
the  inhabitants  and  the  exposure  of  the  public  health,  the  court 
remarking  that  "An  indictment  against  the  corporation  is  the 
proper  mode  of  redress  by  the  public  for  a  grievance  of  this 
nature."1 

So,  also,  in  Kentucky  a  municipal  corporation  is  indictable 
as  at  common  law  for  suffering  its.  streets  to  become  and  remain 
out  of  repair.2 

In  Vermont  a  town  is  liable  to  an  indictment  as  at  common 
law  for  not  erecting  a  bridge  pursuant  to  an  order  fpom  a  compe- 
tent tribunal.3 

In  Maine,  towns  charged  with  the  maintenance  of  public 
highways  are  by  statute  indictable  for  failing  to  discharge  their 
duty  in  this  respect;  and  the  general  principle  is  asserted  in 
such  cases,  that  where  the  town  is  civilly  liable  in  damages  it 
may  be  indicted.4 

Authorities  relating  to  indictments  against  pvMic  officers,,  see  chapter  on 
Corporate  Officers,  ante,  Chap.  IX.  p.  212,  note. 

Requisites  of  indictment  against  official  or  corporate  body  fqr  non -repair  of 
streets :  State  v.  Commissioners  of  Halifax,  2  Dev.  345.  Ante,  Chap.  IX.  p. 
212,  note.  Facts  which  will  sustain  an  indictment :  Davis  v.  Bangor,  42 
Maine,  522;  Howard  v.  Bridgewater,  16  Pick.  189. 

1  State  v.  Shelbyville,  4  Sneed  (Tenn.),  176, 1856 ;  Hill  %  State,  ib.  443. 

But  in  Vermont  it  has  been  held  that  a  town  is  not  indictable  for  not 
removing  nuisances;  as,  for  example,  a  stagnant  and  noxious  pool  of  water 
beside  a  street,  not  created  by  it  or  its  agents :  State  v.  Burlington,  36  Vt. 
521,  1864.  Whether  a  municipal  corporation  is  liable  to  indictment  for 
keeping  and  maintaining  a  "calaboose,"  if  it  is  so  situated  or  managed  as  to 
become  a  nuisance,  qusere :    Paris  v.  People,  27  111.  74. 

a  Commonwealth  v.  Hopkinsville,  7  B,  Mon,  (Ky.)  38,  1846 ;  Hamar  v. 
Covington,  3  Met.  (Ky.)  494, 1861,  per  Peters,  J. 

8  State  v.  Whittingham,  7  Vt.  390, 1835. 

*  Per  Weston,  C.  J.,  State  *  Great  Works  Milling  Company,  20  Maine,  41, 
1841 ;  Davis  v.  Bangor,  42  Maine,  522, 1856 ;  State  v,  Gorham,  37  Maine,  451 


CH.  XXII.]        ILLEGAL  CORPORATE  ACTS. —  INDICTMENT.  699 

§  748.  On  the  ground  that  the  legislation,  both  colonial 
and  state,  had  imposed  the  duty  of  repairing  bridges  on  the  town- 
ship, and  had  never  recognized  the  common  law  principle  of 
holding  the  inhabitants  of  counties  responsible  for  repairs,  the 
Supreme  Court  of  New  Jersey  holds  that  the  inhabitants  of 
counties  in  that  state  are  not  indictable  for  not  repairing  bridges 
over  rivers ;  nor  at  common  law  were  they  so  indictable  for 
not  repairing  bridges  over  canals.  The  court  enters  a  caveat 
against  "acquiescing  in  the  dicta  in  the  books,"  asserting  a 
doctrine  which  would  make  the  inhabitants  of  townships  or 
tbe  board  of  freeholders  indictable  for  the  non-repair  of 
bridges.1  Under  a  statute  investing  the  county  commissioners 
"with  a  general  superintendence  over  the  public  roads,"  pre- 
scribing their  duties  and  the  manner  of  raising  means,  and  also 
providing  for  the  indictment  of  the  commissioners  for  "palpa- 
ble omission  of  duty,"  no  prosecution  can,  in  the  opinion  of 
the  Supreme  Court  of  Illinois,  be  sustained,  unless  there  was 
a  palpable  omission  of  duty  imperatively  required  by  law,  in  a 
matter  involving  no  discretion,  or  a  wilful  and  corrupt,  as  well 

1854,  where  a  town  was  held  indictable  for  neglecting  to  keep  in  repairs  a 
bridge  and  abutments  erected  by  a  railroad  company  over  a  railroad  where 
it  crosses  the  public  highway.  The  primary  liability  under  the  statute,  as 
respects  the  public,  was  considered  as  resting  upon  the  town  rather  than 
upon  the  railroad  company,  the  latter,  however,  would  be  liable  to  the 
towns,  which  could  enforce  such  liability  by  mandamus  to  compel  the 
railroad  companies  to  keep  such  bridges  as  the  law  requires  them  to 
maintain,  in  repair.  See  Cambridge  v.  Charlestown  Railroad  Company,  7 
Met.  70 ;  Bex  v.  Birmingham  &c.  Railroad  Company,  9  Car.  &  P.  469. 
Or  by  indictment:  Rex  v.  Inhabitants  of  Oxfordshire,  16  East,  223.  Or, 
if  money  be  expended  by  the  town  in  necessary  repairs,  by  an  action 
on  the  case.  Further,  as  to  liability  of  towns  for  defects  in  railroad 
bridges  erected  on  a  public  highway,  see  Sawyer  v.  Northfleld,  7  Cush. 
490,  where,  under  the  statute  of  Massachusetts,  a  different  conclusion  was 
reached.  Under  the  statute  of  the  latter  state,  the  liability  of  the  town  is 
qualified,  and  does  not  exist  where  the  turnpike,  or  bridge,  or  railroad 
company,  is  bound,  by  law  or  charter,  to  keep  the  roads  and  bridges  built 
by  them  in  repair,  in  which  case  they,  and  not  the  towns,  are  liable  for 
neglect  of  this  duty :  See,  further,  ante,  Sec.  560,  and  note.  Post,  Chap. 
XXIII. 

1  State  v.  Hudson  County,  1  Vroom  (N.  J.),  137, 1862.  The  opinion  in  this 
case,  by  Vredenburgh,  J.,  was  evidently  prepared  with  much  care,  and  is 
highly  interesting. 


700  MUNICIPAL   CORPORATIONS.  [t3H.  XXII. 

as  palpable,  neglect  of  a  discretionary  duty,  mere  error  of  judg- 
ment or  departure  from  sound  policy  not  being  sufficient 
where  the  defendants  are  vested  with  a  discretionary  power.1 

1  Eyman  et  al.  v.  People,  1  Gilm.  (111.)  8  (neglecting  to  repair  bridge). 
Further,  as  to  Bridges,  see  Chap.  XVIII.  on  Streets,  write,  Sec.  579 ;  Chap. 
XX.  on  Mandamus,  Sec.  673.    Pod,  Chap.  XXIII. 


CH.  XXIII.]  CIVIL  ACTIONS   AND   LIABILITIES.  701 

CHAPTER  XXIII. 

Civil  Actions  and  Liabilities. 

Actions  on  Contracts — Sees.  749-751. 

1.  Liability  on  Contracts — Ultra  Vires  as  a  defence  —  Sec. 
749. 

2.  Liability  on  Implied  Contracts,  generally — Sec.  750. 

3.  For  Illegal  Taxes,  &c,  compulsorily  collected — Sec.  751. 

Actions  for  Torts —Sees.  752-802. 

4.  No  liability  in  respect  to  the  exercise  of  discretionary  or 
legislative  powers — Sec.  753. 

5.  Nor  for  imperfect  execution  of  by-laws — Sec.  754. 

6.  Nor  for  misconstruing  extent  of  public  powers — Sec.  755. 

7.  Nor,  without  a  statute  creating  it,  for  buildings  demolished 
to  prevent  fire — Sees.  756-759. 

8.  Nor  for  property  destroyed  by  mobs — Sec.  760. 

9.  Implied  liability  for  neglect  of  corporate  duty— Sees.  761, 
778,779. 

10.  iHstvnction  in  this  respect  between  quasi  corporations 
and  municipal — Sees.  761-765. 

11.  Liability  for  torts  of  officers  and  agents — Sec.  766. 

12.  Not  liable  for  acts  ultra  vires — illustrations — Sees.  767, 
768. 

13.  But  liable  for  authorized  torts  not  ultra  vires — Sees.  769 
-771. 

14.  Respondeat  Superior,  when  applicable — Sees.  772-778. 

15.  Respondeat  Superior :  "Who  are,  and  who  are  not,  cor- 
porate officers — Sees.  773-777. 

16.  Liability  for  neglect  of  corporate  duty  —  Sees.  761,  778, 
779. 

17.  Liability  in  capacity  of  property  owner — Sec.  780. 

18.  No  liability  for  acts  authorized  by  charter  or  statute — 
Sec.  781. 

19.  Streets. — May  grade  and  change  grade  of  streets — Sees. 
782,  783. 


702  MUNICIPAL    CORPORATIONS.  [CH.  XXIII. 

20.  Streets. — RerrCedy  therefor,  if  given,  must  be  followed — 
Sec.  784. 

21.  Streets. — Liability  for  unsafe  streets  and  sidewalks — Sec. 
785,  etseq. 

22.  Defective  Highways. —  New  England  statutes  and  decisions 
on  this  subject — Sees.  786-788. 

23.  Streets. —  General  liability  of  municipal  corporations  proper 
for  unsafe  streets — Sees.  789-793. 

24.  Streets. — Liability  of  author  of  defect  or  obstruction — ■ 
Sees.  794,795. 

25.  Streets. — Defects  caused  by  railroads — Sec.  796. 

26.  Streets. — Liability  as  to  water  courses  and  surface  water 
—  Sees.  797-800. 

27.  Streets. — Drains  and  Sewers — liability  in  respect  to— 
Sees.  801,  802. 

Actions  on  Contracts. 

§  749.  Municipal  corporations  are  subject  to  be  sued  upon 
contracts  and  in  tort.  In  a  previous  chapter  we  have  consid- 
ered at  length  the  authority  of  such  corporations  to  make  con* 
tracts,  the  mode  of  exercising,  and  the  effect  of  transcend- 
ing the  power.1  This  leaves  but  little  to  add  in  this  place 
respecting  their  liability  in  actions  ex  contractu.  Upon  author- 
ized contracts — that  is  upon  contracts  within  the  scope  of  the 
powers  of  the  corporation  and  made  by  the  proper  officers  or 
agents— they  are  liable  in  the  same  manner,  and  to  the  same 
extent,  as  private  corporations  or  natural  persons.  But  upon 
contracts  which  are  ultra  vires  in  the  strict  sense  of  that  expres- 
sion, that  is  upon  those  relating  to  matters  wholly  outside  of 
the  legal  powers  of  the  corporation,  there  is  no  liability;  and 
the  corporation  is  not  estopped  to  set  up  the  defence.2    Nor, 

1  Ante-,  Chap.  XIV.  on  Contracts,  Sec.  370,  et  seq. 

2  Ante,  Sec.  381,  and  cases  cited.  Further,  as  to  ultra  vires,  see  post,  Sees. 
766,  767,  768;  also,  Buffett  v.  Eailroad  Company,  40  N.  Y.  168,  and  note; 
Grigg  v.  Foote,  4  Allen,  195 ;  Pearce  v.  Eailroad  Company,  21  How.  (U.  S.) 
441, 1858.  The  subject  is  well  examined  and  the  different  senses  in  which 
the  term  ultra  vires  is  used  is  stated  by  Sawyer,  C.  J.,  in  the  Miners'  Ditch 
Company  v.  Zellerbach,  37  Cal.  543,  1869. 

A  useful  article  on  ultra  vires,  or,  How  far  corporations  are  liable  for  acts 
not  authorized  by  their  charters,  will  be  found  in  5  American  Law  Review 


CH.  XXIII.]  ACTION    ON   IMPLIED   CONTRACTS.  703 

as  we  have  before  stated,  is  it  bound  by  contracts  within  the 
scope  of  its  chartered  powers,  if  made  by  officers  or  agents  not 
thereunto  duly  authorized.1 

§  750.  Municipal  corporations  are  liable  to  actions  of  im- 
plied assumpsit.  The  principles  governing  such  liability  have 
already  been  referred  to.2  Some  additional  illustrations  of  it 
may  be  here  appropriately  noticed.  Thus,  if  the  officers  or 
agents  of  a  municipal  corporation,  acting  under  ordinances 
which  are  void,  make  sales  and  deeds  of  corporate  property, 
which  pass  no  right  to  the  purchaser,  and  can  never  ripen  into 

(January,  1871),  272,  in  the  form  of  a  note  to  the  opinion  of  Jervis,  C.  J.,  in 
The  East  Anglian  Railway  Company  v.  The  Eastern  Counties  Railway  Com- 
pany, 11 C.  B.  775,  21  L.  J.  (N.  S.)  C.  P.  23,  16  Jur.  249,  selected  because  "  one 
of  the  earliest  and  most  constantly  cited  of  the  many  cases  on  the  subject, 
and,  after  being  much  criticised,  has  been  followed  in  the  latest  English 
adjudications."  After  referring  to  numerous  English  and  American  cases, 
the  writer  thus  states  his  judgment  of  the  result:  "We  gather  from  the 
cases  which  have  been  cited,  and  from  others,  that  when  a  corporation  is 
created  by  a  public  statute  for  definite  and  limited  objects,  to  which  its 
funds  are  to  be  applied,  a  contract  which  is  entirely  unconnected  with  those 
purposes,  or  which,  on  its  face,  will  cause  the  funds  to  be  applied  to  other 
objects,  is  illegal  and  void" — citing  the  cases:  *  *  *  "The  question 
whether  a  particular  contract  is  binding  on  a  particular  corporation  or  not, 
is  to  be  answered  by  determining  whether,  on  a  fair  construction  of  the 
charter,  it  relates  to  matters  connected  with  the  corporate  powers  and  duties. 
*  *  *  When  an  act  in  its  external  aspect  is  within  the  general  powers 
of  the  company,  and  is  only  unauthorized  because  it  is  done  with  a  secret, 
unauthorized  intent,  the  defence  of  ultra  vires  will  not  prevail  against  a 
stranger  who  dealt  with  the  company  without  notice  of  such  intent."  As 
to  effect  of  having  notice:  Ebbw  Vale  Co.  L.  R.  8  Eq.  14;  5  Am.  Law  Rev. 
283,  note.    Estoppel:  lb.  275,  and  cases  cited. 

1  Ante,  Chap.  XIV.  Sees.  372,  381,  419-426.  The  city  council  of  a  city 
authorized  to  borrow  money  and  issue  its  bonds  therefor,  ordered  its  offi- 
cers to  insert  on  the  face  of  certain  bonds  the  consideration;  the  officers  failed 
to  do  it,  and  the  bonds,  negotiable  in  form,  came  into  the  hands  of  bona  fide 
holders,  and  it  was  held  that  the  city  was  responsible  for  the  acts  and  omis- 
sions of  its  officers  in  this  respect,  and  was  bound  to  pay — the  court  regard- 
ing the  directions  to  the  officers  not  a  limitation  on  their  powers,  but  in  the 
nature  of  private  instructions :  De  Voss  v.  Richmond,  18  Gratt.  ( Va.)  338, 
1868,  The  opinion  of  Joynes,  J.,  in  this  case,  treats  the  power  of  the  cor- 
poration to  borrow  money  as  one  of  its  private,  and  not  public  or  govern- 
mental, powers. 

2  Ante,  Sees.  383-387;  Township  v.  Township,  11  Iowa,  506,  and  cases 
cited;  Lemington  v.  Blodgett,  37  Vt.  215. 


704  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

a  title,  and  receive  the  purchase  money  and  place  the  same  into 
the  treasury  of  the  corporation,  which  appropriates  the  money 
to  its  own  use  hy  virtue  of  ordinances  or  resolutions  legally 
adopted,  the  purchaser  may  recover  back  the  purchase  money, 
and  the  sale  being  void,  he  need  not  make  or  tender  a  re- 
conveyance before  bringing  his  action.1  So  a  purchaser  from 
a  city  corporation  of  its  bonds,  which  are  wholly  void  for  want 
of  power  to  issue  them,  may  recover  back  from  the  city  the 
money  paid,  as  upon  a  failure  of  consideration;  and  in  such 
case,  the  bonds  being  void,  it  was  even  held  not  to  be  neces- 
sary for  the  plaintiff  to  offer  to  return  them  before  bringing 
suit,  it  being  sufficient  to  produce  them  at  the  trial  to  be  sur- 
rendered.2 

§  751.  An  important  class  of  actions  in  form  ex  contractu 
remains  to  be  noticed.  We  refer  to  actions  against  municipal 
corporations  to  recover  back  money  paid  to  them  for  taxes.  They 
are  usually  brought  in  assumpsit  for  money  had  and  received, 
are  equitable  in  their  nature,  and  lie  for  money  actually  paid 

1  The  principle  stated  in  the  text  was  settled,  after  great  consideration,  by 
the  Supreme  Court  of  California,  in  an  interesting  series  of  cases  known  as 
the  "City  Slip  Cases:"  Ante,  Sec.  447;  McCracken  v.  San  Francisco,  16  Cal. 
591,  1860;  Grogan  v.  San  Francisco,  18  Cal.  590,  1861;  Piemental  v.  San 
Francisco,  21  Cal.  351, 1863,  where  Mr.  Chief  Justice  Meld  reviews  the  pre- 
vious cases,  and  sums  up  the  propositions  they  establish.  See,  also,  Sater- 
lee  v.  San  Francisco,  23  Cal.  314,  1863 ;  Herzo  v.  San  Francisco,  33  Cal.  134, 
1867.  In  this  last  case  the  principle  stated  above  was  re-affirmed,  but 
it  was  held  that  the  city  would  not  be  liable  simply  by  reason  of  the  re- 
ceipt and  retention  of  the  money  by  its  officers  or  the  treasurer;  that  an 
appropriation  by  the  city  is  necessary,  which  could  only  be  by  a  valid 
ordinance ;  and  hence  where  the  appropriation  was  by  virtue  of  an  ordi- 
nance which  was  void,  because  not  passed  as  required  by  the  charter,  the 
city  is  not  liable,  even  if  the  money  has  been  applied  in  payment  of  its 
debts.  This  last  decision  was  participated  in  by  part  of  the  court  only,  and 
it  is  not  clear  to  our  mind  that  it  does  not  lay  down  too  strict  a  rule  as  to 
the  necessity  of  a  valid  ordinance  to  constitute  such  an  appropriation  or  con- 
version of  the  money,  as  will  make  the  city  liable  to  refund :  See  Dill  v. 
Wareham,,7  Met.  (Mass.)  438. 

As  to  liability  of  counties  on  implied  contract:  Alton  v.  Madison  County 
(pauper),  21  111.  115,  1859 ;  Walcott  v.  Lawrence  County  (denying  such  lia- 
bility under  statute  of  Missouri),  26  Mo.  272;  Aldrich  v.  Londonderry 
(paupers),  5  Vt.  441 ;  17  ib.  79,  447;  Lehigh  County  v.  Kleckner  (erecting 
county  bridge),  5  Watts  &  Serg.  181. 

2  Paul  v.  Kenosha,  22  Wis.  266, 1867.    Ante,  p.  377,  note  "- 


CH.  XXIII.J  ACTION   TO    RECOVER    BACK   TAXES.  '    705 

to  the  defendant,  and  which  it  is  against  equity  and  good  con- 
science he  should  retain.  If  a  tax  has  been  levied  upon  the 
plaintiff's  property,  and  if  that  property  is  subject  to  the  tax, 
the  amount  is  justly  and  equitably  due,  and  cannot,  for  any 
mere  irregularities  in  the  detail  or  mode  of  proceeding,  be  re- 
covered back.  Actions  of  this  description  against  a  municipal 
corporation  are,  upon  principle  and  the  weight  of  authority, 
maintainable  when,  and  in  general,  only  when,  the  following 
requisites  co-exist :  1.  The  authority  to  levy  the  tax  must  be 
wholly  wanting,  or  the  tax  itself  wholly  unauthorized ;  in  which 
cases  the  assessment  is  not  simply  irregular,  but  absolutely  void. 
2.  The  money  sued  for  must  have  been  actuaUy  received  by 
the  defendant  corpoiation,  and  received  by  it  for  its  own  use, 
and  not  as  an  agent  or  instrument  to  assess  and  collect  money 
for  the  benefit  of  the  state,  or  other  public  corporation  or 
person.  And  3.  The  payment  by  the  plaintiff  must  have  been 
made  upon  compulsion,  to  prevent  the  immediate  seizure  of  his 
goods  or  the  arrest  of  the  person,  and  not  voluntarily.  Unless 
these  conditions  concur,  paying  under  protest  will  not  give  a  right 
of  recovery.  The  same  principles  are  applicable  to  actions  for 
the  recovery  back  of  money  paid  for  illegal  license  taxes  or  fines 
imposed  by  a  municipal  court.1    Nor  is  a  town  or  city  liable 

1  Lincoln  v  Worcester  (city  of),  8  Gush.  55,  1851.  The  opinion  in  this 
case  is  by  Shaw,  C.  J.,  and  the  general  subject  is  fully  and  ably  examined, 
and  the  prior  cases  in  Masschusetts  reviewed,  commented  on,  and  distin- 
guished. If  it  cannot  be  inferred  that  the  propriety  of  such  actions  is  to  be 
doubted  in  any  case,  it  is  clearly  insisted  upon  that  they  should  be  limited 
to  cases  where  the  plaintiff  brings  himself  within  all  of  the  conditions  stated 
in  the  text :  Ante,  p.  236,  Sec.  204 ;  McKee  v.  Town  Council  (municipal  fine), 
Eice  (South  Car.),  Law,  24, 1838 ;  Marriott  c.  Hampton,  2  Esp.  546  ;  S.  C.  2 
Smith's  Leading  Cases,  237.  ' 

In  Howell  v.  Buffalo,  15  N.  Y.  512,  1857,  and  Bennett  v.  Buffalo,  17  ib.  383, 
actions  of  tort  were  maintained  for  the  trespass  of  the  officers  of  the  corpora- 
tion in  seizing  bank  bills  to  pay  void  assessments  upon  the  plaintiffs. 

The  tax  or  assessment  must  be  illegal  and  void,  and  not  simply  irregular,  as  de- 
fects in  mode  of  assessment,  over-valuation,  etc.,  to  authorize  its  recovery  bach: 
Sumner  v.  First  Parish,  4  Pick.  361 ;  Stetson  v.  Kempton,  13  Mass.  272  ;  Os- 
born  v.  Dan  vers,  6  Pick.  98 ;  Preston  v.  Boston,  12  Pick.  T;  Boston  Water 
Power  Company  o.  Boston,  9  Met.  199 ;  Howe  v.  Boston,  7  Cush.  273 ;  Pow- 
ers v.  Sanford,  39  Maine,  183  ;  Wright  v.  Boston,  9  Cush.  233  ;  Lee  v.  Tem- 
pleton,  13  Gray,  476;  Cook  v.  Boston  (money  paid  for  license),  9  Allen,  393; 
Boston  v.  Monroe,  7  Cush.  125.  The  validity  of  a  meeting  called  by  a  com- 
mittee de  facto  cannot  be  inquired  into  in  an  action  by  an  inhabitant  against 
89 


706  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

to  a  tax-payer  for  his  proportion  of  illegal  expenses  which  the 

the  public  corporation  to  recover  back  a  tax :  Williams  v.  School  District, 
21  Pick.  75,  1838.  Ante,  Sees.  204, 214,  716,  note,  as  to  acts  of  de  facto  officers, 
and  void  assessment  of  taxes.  As  to  recovery  back  of  money  from  city 
after  payment  on  execution  in  cases  where  the  court  had,  and  also  where  it 
had  not,  jurisdiction  to  render  judgment :  Gordon  v.  Baltimore,  5  Gill,  231 ; 
McKee  v.  Town  Council,  Kice  (South  Car),  Law  (fine),24,  1838. 

The  payment  must  not  have  been  voluntarily  mide,  but  made  upon  compulsion. 
Where  made  to  prevent  or  free  himself  from  arrest,  or  to  prevent  a  levy 
upon  goods  under  warrant  or  other  process,  the  law  considers  the  party  in 
duress,  and  he  may  recover  it  back  if  not  liable  :  lb. ;  Preston  v  Boston, 
12  Pick.  7;  Boston,  &c.  Glass  Company  n.  Boston,  4  Met.  181;  Powers  v. 
Sanford  (distress),  39  Maine,  183;  Haines  v.  School  District  (duress:arrest), 
41  Maine,  246 ;  Cook  v.  Boston,  9  Allen,  393.  Per  Perkins,  J.,  in  Jenks  v. 
Lima  Township,  17  Ind.  326,  1861,  and  cases  cited ;  Allentown  v.  Saeger,  20 
Pa.  St.  421 ;  Silliman  v.  Wing,  7  Hill  (N.  Y.),  159 ;  Oates  v.  Hudson,  5  Eng. 
L.  and  Eq.  469,  note  ;  Elliott  v.  Swartout,  10  Pet.  137. 

Money  voluntarily  paid  to  a  corporation,  without  fraud  or  imposition  for  an 
illegal  tax,  license,  or  fine,  cannot — there  being  no  coercion,  no  ignorance 
or  mistake  of  facts,  but  only  ignorance  or  mistake  of  the  law — be  recovered 
back  from  the  corporation,  either  at  law  or  in  equity,  even  though  such 
tax,  license,  fee,  or  fine  could  not  have  been  legally  demanded  and  enforced : 
lb.;  Robinson  v.  City  Council,  2  Rich.  (South  Car.)  Law,  317,  1846;  Smith 
v.  Hutchinson,  8  ib.  260,  1855;  Elston  v.  Chicago  (void  special  assessment), 
40  111.  514, 1866.  The  doctrine  that  in  such  cases  there  is  no  implied  assumpsit 
is  carefully  examined  and  vindicated  by  Carr,  J.,  and  Tucker,  Prest.,  in  the 
opinions  pronounced  by  them  in  Richmond  (city  of)  v.  Judah,  5  Leigh  ( Va.), 
305,  1834,  and  which  will  repay  perusal.  Same  principle :  See,  also,  the 
full  and  able  opinion  of  Walker,  C.  J.,  in  Town  Council  v.  Burnett,  34  Ala. 
400,  1859,  and  cases  cited ;  Christy's  Administrators  v.  St.  Louis,  20  Mo.  143, 
1854  ;  Walker  v.  St.  Louis,  15  ib.  563 ;  Smith  v.  Readfield,  27  Maine,  145. 

The  same  doctrine  has  been  applied  to  money  paid  under  an  unconstitu- 
tional act  of  the  legislature  and  ordinances  passed  in  pursuance  thereof,  the 
court  adopting  the  principle  that  money  voluntarily  paid  under  a  mistake 
of  legal  right  cannot  be  recovered  back,  and  that  mere  apprehension  of  an 
impending  distress  warrant  did  not  make  the  payment  a  compulsory  one : 
Baltimore  v.  Lefferman,  4  Gill  (Md  ),  425,  1846,  where  Martin,  J.,  adverts 
to  the  leading  authorities,  and  deduces  from  them  rules  substantially  the 
same  as  those  stated  in  the  text  Approved,  Morris  v.  Baltimore  5  Gill 
(Md.),  244.  See,  also,  Gordon  v.  Baltimore,  ib.  231.  S.  P.  Taylor  v.  Board  of 
Health,  31  Pa.  St.  73,  holding  that  a  threat  to  use  legal  remedies  to  collect  does 
not  make  the  payment  compulsory. 

What  constitutes  compulsory  payment :  Where  a  person,  on  his  own  motion, 
goes  to  the  city  clerk  and  pays  money  as  the  price  of  a  license,  under  an  or- 
•  dinance  afterwards  judicially  declared  void,  the  payment  is  voluntary,  and 
not  upon  compulsion,  although  the  ordinance  imposed  a  fine  and  impris- 
onment, as  a  penalty  for  not  obtaining  a  license ;  hence,  in  such  cases,  the 
money  cannot  be  recovered  back  in  an  action  against  the  corporation: 
Town  Council,  &c.  v.  Burnett,  34  Ala.  400,  1859. 


CH.  XXIII.]  ACTIONS   ON   IMPLIED   CONTRACTS.  707 

corporate  authorities  may  have  incurred  and  paid  out  of  money 

In  Ohio  the  doctrine  is  judicially  asserted  that  money  will  be  deemed  to 
have  been  paid  compulsorily  not  only  where  the  payment  was  made  to  re- 
lease person  or  property  from  detention,  but  also  in  cases  where  the  parties 
do  not  stand  on  an  equal  footing,  and  where  the  one  party,  before  he  would 
perform  a  duty  enjoined  on  him  by  law,  illegally  compelled  or  required 
the  other  to  pay  a  sum  of  money  to  induce  or  secure  such  performance : 
Baker  v.  Cincinnati,  11  Ohio  St.  534,  1860,  action  to  recover  money  paid  for 
theatre  license  ''under  protest;"  qualifying  and  explaining  Mays  v.  Cincin- 
nBti,  1  w.  268.  So,  where  a  county  court  gave  notice  that  they  would  grant 
a  certain  ferry  to  the  person  who  would  donate  the  largest  sum  to  the 
county,  and  in  accordance  therewith,  the  then  holder  of  the  franchise  bid 
the  sum  of  $500,  which,  in  an  action  against  the  county,  he  was  allowed  to 
recover  back,  on  the  ground  that  the  county  authorities  had,  under  the 
statute,  no  right  to  impose  any  such  condition  or  restriction  upon  the  grant : 
County  v.  Simmons,  5  Gilm.  (111.)  516.  As  to  liability  of  county  for  a  fine 
paid,  to  it :  Cook  v.  Freeholders,  2  Dutch.  (N.  J.)  326.  So,  also,  in  the  same 
state  it  is  decided  that  a  payment  is  not  voluntary  if  the  collector  has  a  warrant 
by  virtue  of  which  he  may  levy  and  sell,  and  this  is  exhibited  to  the  per- 
son paying  by  the  collector ;  the  party  in  that  state  not  being  entitled  in 
such  case  to  replevy  personal  property :  Bradford  v.  Chicago,  25  111.  412, 
1861. 

Money  compulsorily  paid  to  a  city  on  a  void  assessment  for  the  purpose  of 
opening  a  street  may  be  recovered  back,  the  right  to  such  recovery  being 
especially  clear,  if  the  improvement  be  abandoned  by  the  corporation: 
Bradford  v.  Chicago,  25  111.  412, 1861.  So,  it  seems,  that  if  in  such  case  the 
money  is  voluntarily  paid,  it  may  be  recovered  back,  as  on  the  ground  of  a 
total  failure  of  consideration,  when  the  scheme  of  the  improvement  for  which 
the  money  was  collected  has  heen  abandoned,  or  is  unreasonably  delayed  by 
the  corporate  authorities :  lb.  Ante,  Sees.  473-475.  In  Kentucky  it  is  held 
that  an  action  lies  to  recover  money  paid  under  a  clear  and  palpable  mistake 
of  law  or  fact,  and  when  in  law,  honor,  or  conscience,  it  was  not  due:  Louis- 
ville v.  Henning,  1  Bush,  381, 1866.  What  is  such  a  mistake?  lb. ;  Noble 
v.  Bullis,  23  Iowa,  559 ;  Ripon  v.  School  District,  17  Wis.  83. 

Rules  of  the  civil  law  and  provisions  of  the  Louisiana  Code  on  this  sub- 
ject, which  are  not  entirely  coincident  with  the  English  and  American 
jurisprudence:  See  Worsley  v.  Municipality,  9  Rob.  (La.)  324, 1844,  relating 
to  wharfage  illegally  collected,  and  Catholic  Society  v.  New  Orleans,  10  La. 
An.  73,  as  to  recovery  back  of  taxes  assessed  upon  exempt  property  and  vol- 
untarily paid. 

Cases  showing  when  the  payment  is  deemed  compulsory,  and  when  voluntary  : 
Preston  v.  Boston,  12  Pick.  7 ;  Ashley  v.  Reynolds,  2  Stra.  916 ;  Bank  v.  New 
Orleans,  12  La.  An.  42 ;  Louisville  v.  Zanone,  1  Met.  (Ky.)  151 ;  Baltimore  v. 
Hefferman,  4  Gill  (Md.),  432 ;  Morris  v.  Baltimore,  5  Gill  (Md.),  248 ;  Walker 
v.  St.  Louis,  15  Mo.  574 ;  Glass  Company  v.  Boston,  4  Met.  (Mass.)  181, 188 ; 
Town  Council  v.  Burnett,  34  Ala.  400, 1859,  and  cases  cited ;  Philadelphia  v. 
Cooke,  30  Pa.  St.  56 ;  Allentown  v.  Sseger,  20  Pa.  St.  421 ;  Robinson  v.  Charles- 
ton, 2  Rich.  (South  Car.)  317;  Dew  v.  Parsons,  18  Eng.  Com.  Law,  87;  Col- 


708  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

raised  by  taxes.1  The  principle  has  been  held  to  apply  to  mu- 
nicipal or  public  corporations,  as  well  as  to  individuals,  that 
money  voluntarily  paid  under  a  claim  of  right,  there  being  no 
fraud  or  mistake  of  fact,  although  the  payor  is  mistaken  in 
point  of  law  as  to  his  legal  liability,  is  not  recoverable  back.2 
Thus,  where  a  board  of  supervisors  acting  for  a  county  have 
power  "to  examine,  settle,  and  allow"  all  accounts  chargeable 
against  the  county,  their  allowance  and  settlement  is  binding 
upon  the  county,  so  as  to  preclude  it  from  recovering  back 
money  paid  pursuant  thereto.3  But  before  payment,  the 
county  may,  in  the  author's  judgment,  defend,  notwithstanding 
the  allowance,  if  not  liable  in  law.* 

Actions  for  Torts. 

§  752.  We  find  it  impossible  to  state,  by  way  of  definition, 
any  rule  so  precise  as  to  be  of  much  practical  value  which  will 
precisely  embrace  the  torts  for  which  a  private  action  will  lie 

well  v.  Piden,  3  Watts  (Pa.),  327,  328;  County,  &c.  v.  Simons,  5  Gilm.  (HI.) 
513;  Elliott  v.  Swartout,  10  Pet.  (U.  S.)  150;  Clark  v.  Dutcher,  9  Cow.  674; 
Leonard  v.  Canton  (license),  35  Miss.  189,  1868 ;  Harvey  v.  Olney,  42  111.  336, 
1866;  Elston  v.  Chicago  (special  assessment),  40  111.  514,  1866;  Cook  v.  Bos- 
ton (license),  9  Allen,  393 ;  Mylert's  Executors  v.  Sullivan  County,  19  Pa. 
St.  181. 

Under  protest. — Merely  paying  under  protest  does  not  make  the  payment  a 
compulsory  one :  Lee  v.  Templeton,  13  Gray,  476. 

As  to  payment  under  protest. —  Effect  of  these  words:  Baker  v.  Cincinnati, 
11  Ohio  St.  534, 1860;  Jenks  v.  Lima  Township,  17  Ind.  326,  1861;  Taylor  v. 
Board  of  Health,  31  Pa.  St.  73;  Valpey  v.  Manley,  1  C.  B.  592;  Parker  «. 
Railroad  Company,  7  M.  &  G.  253 ;  4  Met.  181 ;  Allentown  v.  Sseger,  20  Pa. 
St.  421 ;  Cook  i>.  Boston,  9  Allen,  393;  Grim  v.  School  District,  57  Pa.  St. 
433,  1868. 

Legalization  of  the  illegal  tax  hy  the  legislature  before  it  is  recovered  back, 
will  defeat  the  action :  Grim  v.  School  District,  57  Pa.  St.  433,  1868.  Ante, 
Chaps.  IV.  XIX.  as  to  extent  of  legislative  power. 

Enjoining  collection  of  illegal  taxes :  See,  ante,  Sees.  737,  738. 

1  Washington  v.  Harvard,  8  Cush.  66, 1851;  ante,  Sec.  732;  New  London 
v.  Brainard,  22  Conn.  552,  1853. 

2  Marriott  v.  Hampton,  2  Esp.  546;  S.  C.  Smith's  Leading  Cases,  237;  Clarke 
v.  Dutcher,  9,Cowen,  674:  Mowatt  v.  Wright,  1  Wend.  355;  2  Denio,  infra, 
26,  and  cases  cited  on  page  40. 

3  Supervisors  v.  Briggs,  2  Denio,  26,  1846;  S.  C.  2  Hill  (N.  Y.),  135;  fol- 
lowed, Smelson  v.  State,  16  Ind.  29. 

*  Ante,  Sec.  406;  Sec.  411,  and  note;  Sec.  412. 


CH.  XXIII.]   ACTIONS  FOR  TORTS. —  DISCRETIONARY  POWERS.  709 

against  municipal  corporations.  The  difficulty  experienced  by 
the  courts  on  this  subject  has  been  often  confessed,  and  speak- 
ing of  it,  Mr.  Justice  Foote  remarks :  "  All  that  can  be  done 
with  safety  is  to  determine  each  case  as  it  arises."1  It  is  very 
justly  observed  in  Mersey  Dock  Cases2  (relating  to  the  liability 
of  a  public  corporation  required  to  maintain  suitable  docks  and 
harbor  accommodations,  for  the  use  of  which  they  were  author- 
ized to  demand  certain  dues),  "that  in  every  case  the  liability 
of  a  body  created  by  statute  must  be  determined  under  a  true 
interpretation  of  the  statutes  under  which  it  is  created."  We 
can,  perhaps,  most  satisfactorily  ascertain  the  state  of  the  law 
respecting  the  liability  of  municipal  corporations  in  actions  for 
torts,  by  referring  to,  and,  as  far  as  possible,  classifying,  the 
cases  (which  may  be  grouped  according  to  the  subject  matter) 
in  which  such  liability  has  been  judicially  asserted  or  denied. 
And  first,  we  will  mention  certain  cases  in  which  these  corpo- 
rations are  not  liable  to  civil  actions,  unless  the  liability  be  ex- 
pressly created  by  statute. 

§  753.  A  municipal  corporation  is  not  liable  to  an  action  for 
damages  either  for  the  non-exercise  of,  or  for  the  manner  in  which 
in  good  faith  it  exercises,  discretionary  powers  of  a  public  or  legis- 
lative character.  So,  where  such  a  corporation  has  a  discretion 
as  to  the  time  and  manner  of  making  corporate  improvements,  as 
for  example,  grading  streets,  making  sewers,  drains,  vaults,  etc., 
building  market  houses,  improving  its  harbor,  and  the  like,  uei- 
ther  mandamus  nor  a  private  action  will  lie  against  the  corpora- 
tion for  omitting  or  neglecting  to  act;  and  the  reason  is,  that  such 
powers  are  conferred  to  be  exercised  or  not,  as  the  public  in- 
terest is  deemed  to  require,  and  there  is  no  implied  liability 
for  deciding  either  that  the  public  interest  does  not  require 
action,  or  that  it  requires  action  in  a  particular  way.3     There 

1  Lloyd  v.  Mayor,  &c.  of  New  York,  1  Seld.  369,  375, 1851. 

2  Mersey  Docks  v.  Gibbs;  Same  v.  Penhallow,  Law  R.  1  H.  L.  Cases,  93; 
S.  C.  1  H.  &  N.  439 ;  3  ib.  164,  approved  by  Rives,  J.,  in  his  learned  opinion 
in  Richmond  v.  Long's  Administrators,  17  Gratt.  ( Va.)  375. 

s  Wilson  v.  Mayor,  &c.  of  New  York,  1  Denio,  595, 1845.  Followed,  Cole 
*.  Medina,  27  Barb.  218,  1858 ;  Lacour  v.  Mayor,  &c.  of  New  York,  3  Duer, 
406,  1854.  Post,  Sees.  800-802;  "White  v.  Yazoo  City,  27  Miss.  357,1854; 
Griffin  v.  Mayor,  9  N.  Y.  456,  1853,  and  cases  cited;   followed,  Dewey 


710  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

may  be,  however,  as  elsewhere  shown,  an  implied  liability  for 
the  negligent  or  unskillful  manner  in  which  strictly  corporate 
powers,  as  distinguished  from  public  powers,  are  carried  into  ex- 
ecution, although  there  was  no  perfect  duty  resting  on  the 
corporation  to  enter  upon  the  works  or  undertakings  involving 
the  exercise  of  such  powers.1  But  the  liability  in  such  cases 
attaches  only  wheD  the  duties  cease  to  be  judicial  in  their  na- 
ture, and  become  purely  ministerial.2 

§  754.  Unless  there  be  a  valid  contract  creating,  or  a  statute 
declaring,  the  liability,  a  municipal  corporation  is  not  bound  to 
provide  for  and  secure  a  perfect  execution  of  its  by-laws,  and  it  is 
not  responsible  in  a  civil  action  for  the  neglect  of  duty  on  the 
part  of  its  officers  in  respect  to  their  enforcement,  though  such 
neglect  result  in  injuries  to  private  persons  which  would  other- 
wise not  have  happened.3 

v.  Detroit,  15  Mich.  307,  where  the  council  had  a  discretion  as  to  the 
number  of  subordinate  officers  it  would  appoint:  Western  College  v. 
Cleveland,  12  Ohio  St.  375,  1861;  Carr  v.  Northern  Liberties  (authority 
to  construct  sewers),  35  Pa.  St.  324,  1860 ;  Bennett  v.  New  Orleans,  14 
La.  An.  120,  1849 ;  Cooley,  Const.  Lim.  208.  Infra,  Sec.  760 ;  Kelly  v. 
Milwaukee  (damage  by  swine  at  large),  18  Wis.  83,  1864 ;  Joliet  v.  Ver- 
ley,  35  111.  58,  per  Beclwith,  3. ;  Goodrich  v.  Chicago,  20  111.  445,  1859,  in 
which  it  was  held  where  a  city  corporation  had,  among  other  powers,  ex- 
press authority  "  to  remove  all  obstructions  in  the  harbor,"  that  it  was  not  liable 
to  a  party  who  received  damages  from  a  sunken  hulk  therein,  if  the  city 
had  never  undertaken  to  exercise  the  power  granted  to  it  to  clear  out  the 
harbor.  If,  however,  says  Caton,  C.  J.,  the  city  had  entered  upon  the  work 
of  removing  the  hulk,  and  in  doing  so  had  carelessly  left  it  in  an  exposed 
situation,  by  reason  of  which  a  navigator's  vessel  was  injured,  it  would  be 
liable  for  such  negligence :  See,  on  this  point,  infra,  Sees.  772-778 ;  Mayor, 
&C;  v.  Furze,  3  Hill  (N.  Y.),  612,  explained  in  Wilson  v.  Mayor,  &c.  1  Denio, 
595,  600,  and  in  Mills  v.  Brooklyn,  32  N.  Y.  489,  1865,  cited  infra,  Sec.  801 ; 
Dayton  v.  Pease,  4  Ohio  St.  80,  1854. 

As  to  mandatory  and  discretionary  powers,  see  ante,  Sees.  62,  669,  689.  Post, 
Sees.  800,  801,  802. 

1  Post,  Sees.  755,  note,  778,  789,  790,  802. 

2  Post,  Sec.  802. 

3  Levy  v.  The  Mayor,  &c.  of  New  York,  1  Sandf.  S.  C.  R.  465,  relating 
to  injury  committed  by  swine  running  at  large  in  the  streets  in  violation  of 
by-laws,  cited  with  approval,  11  N.  Y.  (1  Kern.)  396,  and  see  cases  there  cited, 
and 'in  Griffin  v.  The  Mayor,  &c.  of  New  York.  9  N.  Y.  (5  Seld.)  456,  459,  per 
Denio,  J.  S.  P.  Peck  v.  Austin  (market  ordinance),  22  Texas,  261, 1858,  in 
which  the  court,  admitting  that  such  a  corporation  may  be  liable  for  "  the 


CH.  XXIII.]     ACTIONS  FOR  TORTS. —  MISTAKING  POWERS.  711 

§  755.  A  municipal  corporation  is  not  liable  to  a  private 
individual  for  losses  caused  by  its  having  misconstrued  the  extent 
of  its  poivers,  and  issued  a  license  which  it  had  no  authority  to 
grant.1  The  license  in  the  case  just  cited  from  the  United 
States  Supreme  Court2  was  granted  by  the  corporation,  without 
authority  therefor,  to  a  person  to  exercise  the  trade  of  auc- 
tioneer, and  the  plaintiff  having  sustained  losses  from  his 
fraudulent  conduct,  brought  an  action  against  the  city,  the 
injury  alleged  in  the  declaration  being  an  omission  by  the  city 
to  take  a  bond,  as  required  by  law,  and  the  corporation  having 
no  authority  to  require  or  take  such  a  bond,  it  was  held  that 
the  action  could  not  be  maintained.  The  court  observed  that 
the  auctioneer  was  not  "  the  officer  or  agent  of  the  corporation, 
but  acted  for  himself,  as  entirely  as  a  tavern  keeper  or  other 
person  who  carries  on  any  business  under  a  license  from  the 
corporate  body."  The  propesition  may,  we  think,  be  affirmed 
as  unquestionably  sound,  that  the  licensees  of  a  municipal  cor- 
poration to  exercise  any  independent  trade  or  business  for  their 
own  profit  are  not  the  officers  or  agents  of  the  corporation  so 
as  to  make  it  liable,  on  the  principle  of  respondeat  superior,  for 
their  conduct. 

wrongful  acts  of  its  officers  done  under  its  authority,  and  in  pursuance  to 
its  will,  express  or  implied,"  say  that  "Such  a  rule  cannot  be  enforced  in 
this  case,  because  the  act,  or  non-action,  of  the  officers  complained  of,  was 
contrary  to  the  will  of  the  corporation  as  expressed  in  the  ordinance."  See, 
also,  observations  (arguendo)  of  Marshall,  C.  J.,  in  Fowle  v.  Alexandria,  3 
Pet.  398,  409, 1830 ;  Lorrillard  v.  Monroe,  11  N.  Y.  (1  Kern.)  392, 396,  1854, 
affirming  S.  C.  12  Barb.  161.  As  to  who  are  corporate  officers,  and  what  are 
corporate  duties,  see  infra,  Sees.  755,  758,  772-778,  800,  802. 

As  to  contract  to  enforce  ordinances,  see  Le  Claire  v.  Davenport,  13  Iowa,  210. 
Ante,  Sec.  318. 

1  Fowle  v.  Alexandria,  3  Pet.  398,  1830.  S.  C.  below,  3  Cranch,  C.  C.  70. 
Ante,  Sees.  381,  749.  Infra,  Sec.  766.  Nor  is  a  municipal  corporation  liable 
for  the  act  of  its  council  in  erroneously,  but  without  any  corruption  or  malice 
refusing  to  grant  a  retail  license,  by  mistake  supposing  it  had  discretion  over 
the  subject,  when  in  fact  it  had  none.  The  exemption  from  liability  is 
placed  by  the  court  upon  the  ground  that  such  functions  are  substantially 
judicial  in  their  nature :  Duke  v.  Borne,  20  Ga.  635, 1856 ;  White  v.  Yazoo 
City,  27  Miss.  357, 1854.    Supra,  Sec.  753.    Post,  Sec.  801. 

2  Fowle  v.  Alexandria,  supra.  In  Cole  v.  Nashville,  4  Sneed  (Tenn.),  162, 
1851,  arising  on  demurrer  to  the  declaration,  it  was  properly  held  that  as 
the  municipal  corporation  had  no  jurisdiction  over  lunatics,  and  no  power  and 
no  duty  to  arrest  and  confine  them,  or  to  take  measures  for  this  purpose,  it 


712  MUNICIPAL   CORPORATIONS.  [CH.  XXIIL 

\ 

§  756.  The  rights  of  private  property,  sacred  as  the  law  re- 
gards them,  are  yet  subordinate  to  the  higher  demands  of  the 
public  welfare.  Salus  populi  suprema  est  lex.  Upon  this  prin- 
ciple, in  cases  of  imminent  and  urgent  public  necessity,  any  individual 
or  municipal  officer  may  raze  or  demolish  houses  and  other  combusti- 
ble structures  in  a  city  or  compact  town,  to  prevent  the  spread- 
ing of  an  existing  conflagration.  This  he  may  do  independ- 
ently of  statute,  and  without  responsibility  to  the  owner  for 
the  damages  he  thereby  sustains.  The  ground  of  this  exemp- 
tion from  liability  is  the  public  necessity,  the  public  good,  and 
^therefore,  if  the  public  good  did  not  require  the  act  to  be  done 
— if  the  act  was  not  apparently  and  reasonably  necessary — 
the  actors  can  not  justify,  and  would  be  responsible.1 

could  not  be  made  liable  for  a  supposed  omission  of  duty  for  not  doing  so 
Post,  Sec.  766.  But  in  the  same  case  it  was  also  decided  that  if  such  a  cor- 
poration, or  it  officers,  knowing  that  a  person  was  a  lunatic,  granted  him  a  license 
to  carry  on  a  dangerous  avocation,  as  that  of  a  druggist,  it  was  liable  in  dam- 
ages to  a  party  injured  by  such  person  while  in  pursuit  of  the  business  for 
wliich  he  was  thus  licensed.  This  decision  was  based  upon  the  ground  that 
the  injury  which  happened  was  a  natural  and  probable  result  of  the  power 
granted,  and  that  such  corporations  are  liable  for  the  wrongful  acts  and 
neglect  of  their  officers  in  the  course,  and  within  the  scope,  of  their  employ- 
ment. But  was  the  act  of  granting  a  license  to  a  druggist  a  corporate  act? 
Was  it  not  rather  a  public  power  to  be  exercised  by  the  corporation  as  a 
public  agency  of  the  state  ?  And  if  so,  the  acts  or  neglect  of  the  officers 
would  impose  no  liability  on  the  corporation :  Ante,  Sec.  39.  Post,  Sees. 
758,  768,  772-778. 

1  Mouse's  Case,  12  Co.  63;  ib.  13,  where  Lord  Coke  says:  "For  the  com- 
monwealth, a  man  shall  suffer  damage ;  as  for  the  saving  of  a  city  or  town, 
a  house  shall  be  plucked  down  if  the  next  be  on  fire.  This  every  man  may 
do,  without  being  liable  to  an  action."  Maleverer  v.  Spink,  1  Dyer,  36,  b; 
Governor,  &c.  v.  Meredith,  4  T.  E.  797,  per  Butter,  J.;  Eespublica  v.  Spar- 
hawk,  1  Dallas,  337,  and  authorities  cited  by  McKean,  C.  J.  "We  find,  in- 
deed, a  memorable  folly  recorded  in  the  third  volume  of  Clarendon's  his- 
tory, where  it  is  mentioned  that  the  lord  mayor  of  London,  in  1666,  when 
that  city  was  on  fire,  would  not  give  directions  for,  or  consent  to,  the  pulling 
down  of  forty  wooden  houses,  or  to  removing  the  furniture,  &c,  belonging 
to  the  lawyers  of  the  temple,  then  on  the  circuit,  for  fear  he  should  be 
answerable  for  a  trespass ;  and  in  consequence  of  this  conduct  half  of  that 
great  city  was  burned : "  lb.;  15  Vin.  Abr.  title  "Necessity,"  pi.  8;  2  Kent, 
Com.  338;  Taylor  v.  Plymouth,  8  Met.  462,465,  18te,  per  Shaw,  C.  J.;  Mayor, 
&c.  of  New  York  v.  Lord,  18  Wend.  126,  affirming  S.  C.  17  Wend;  285, 1837; 
Conwell  v.  Emrie,  2  Ind.  (Cart.)  35, 1850.  See,  also,  the  interesting  cases  of 
the  American  Print  Works,  3  Zabr.  (N.  J.)  590,  1851,  affirming  S.  C.  ib.  9; 
and  see  S.  C.  on  former  appeal,  1  Zabr.  248;  ib.  714,  which  arose  out  of  the 
great  fire  of  1835,  in  the  city  of  New  York. 


CH.  XXIII.]   ACTIONS  FOR  TORTS. —  BUILDINGS  DEMOLISHED.  713 

§  757.  Municipal  corporations,  or  certain  officers  thereof, 
are  sometimes  appointed,  by  charter  or  statute,  "agents  to  judge, 
of  the  emergency  and  direct  the  performance  of  acts  which  any 
individual  might  do  at  his  peril,  without  any  statute  at  all." x 
And,  by  statute  or  charter,  such  corporations  are  not  unfre- 
quently  made  liable  for  damages  which  individuals  may  sus- 
tain for  buildings  or  property  which  are  destroyed  under  the 
direction  of  the  proper  officers,  to  prevent  the  extension  of  a 
fire.  The  liability  of  the  municipal  corporation  in  sueh  cases  is 
purely  statutory,  and  hence,  in  order  to  charge  it,  the  case  must 
be  clearly  and  fairly  within  the  enactment.2  Thus,  where  the 
statute  allows  such  a  recovery  only  when  a  building  is  demol- 
ished by  the  order  of  three  lire  wards  or  directors,  a  destruc- 
tion of  it  by  the  order  or  direction  of  one  of  these  officers  cre- 
ates no  liability  against  the  corporation;  and  a  by-law  author- 
izing one  to  exercise,  in  urgent  cases,  the  powers  of  the  three, 
was  adjudged  void.3 

1  People  v.  Winnehammer,  12  How.  (Pr.  Rep.  Court  App.)  260,  per  Corn- 
stock,  J. ;  S.  P.  per  Selden,  J.,  ib.  274 ;  Russell  v.  Mayor  of  New  York,  2  Denio, 
461,474,  1845,  opinions  of  Sherman  and  Porter,  Senators.  Infra,  Sec.  772, 
note. 

2  Taylor  v.  Plymouth,  8  Met.  462,  465;  Hafford  «.  New  Bedford,  16  Gray, 
297 ;  McDonald  v.  Red  Wing,  13  Minn.  38, 1868 ;  Sarocco  v.  Geary,  3  Cal.  69 ; 
Dunbar  t).  San  Francisco,  1  Cal.  355, 1850 ;  Wheeler  v.  Cincinnati,  19  Ohio 
St.  19;  Western  College  v.  Cleveland,  12  Ohio  St.  375, 1861,  per  Gholson,  3. ; 
Fisher  v.  Boston,  104  Mass.  87.  Contra:  Bishop  v.  Macon,  7  Ga.  200, 1849; 
but  the  subject  of  corporate  liability  for  the  act  of  mayor  and  council  in  order- 
ing the  destruction  is  not  distinctly  discussed.  Lumpkin,  J.,  seems  erro- 
neously to  suppose  or  assume  that  there  is  an  implied  assumpsit  on  the  part 
of  the  city  for  the  destruction  of  such  property  as  might  otherwise  have 
been  saved  to  the  owner. 

8  Coffin  d.  Nantucket,  5  Cush.  269, 1850.  Note  remarks  of  Metcalf,  J.,  272, 
as  to  Whether  a  majority  of  the  fire  wards  or  directors  could  lawfully  author- 
ize the  destruction  of  buildings.  Ante,  Sees.  221,  251.  See,  also,  Ruggles  v. 
Nantucket,  11  Cush.  433,  1853,  on  this  point,  and  on  the  construction  of  the 
word  "owner."  As  to  the  estate  or  interest  necessary  to  justify  recovery, 
and  as  to  the  right  of  recovery  for  personal  property  under  the  New  York 
statute  (2  Rev.  Laws,  368),  see  Stone  v.  Mayor,  &c.  of  New  York,  25  Wend. 
157, 1840,  affirming  S.  C.  20  Wend.  139;  Mayor,  &c.  of  New  York  v.  Lord, 
18  Wend.  126;  17  ib.  285.  Insurance. — It  is  held  that  the  fact  that  the 
owner  is  insured  does  not  affect  the  right  of  recovery  or  the  amount  to  be 
recovered  of  the  corporation.  The  insurers  are  entitled  to  be  subrogated  to 
all  of  the  rights  of  the  owner  or  assured,  and  to  have  applied  on  their  pol- 
90 


714  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

§  758.  The  city  council  of  Charleston,  acting  under  the 
general  municipal  powers  of  the  city,  and  without  any  special 
statute  creating  a  liability,  adopted  an  ordinance  authorizing 
the  intendant,  among  other  officers,  in  time  of  fire,  to  demol- 
ish such  buildings  "as  may  be  judged  necessary"  by  him  to 
prevent  the  further  spread  of  fire,  thereby  investing  this  officer 
with  the  power  to  judge  whether  the  necessity  existed.  A  fire 
being  in  progress,  the  plaintiff's  house  was  blown  up  by  the 
order  of  the  intendant,  and  the  fire  was  subsequently  extin- 
guished before  it  reached  his  house,  and  he  brought  his  action 
of  trespass  against  the  city,  claiming  that  the  property  had 
been  destroyed  by  the  intendant  without  necessity,  and  that 
the  ordinance  authorizing  the  intendant  to  destroy  the  prop- 
erty for  the  benefit  of  the  city,  was  sufficient  to  charge  the 
city  corporation  in  case  the  plaintiff  established  that  the  destruc- 
tion was  unnecessary,  and  that  the  discretion  of  the  officer  had 
been  abused.  The  court  decided  that  the  plaintiff  could  not 
recover,  placing  its  judgment  upon  the  broad  ground  that  the 
city,  being  a  public  corporation,  was  not  liable  to  an  action  by 
individuals,  unless  it  be  given  by  statute.1 

§  759.  As  one  whose  property  has  been  destroyed  by  the 
order  of  the  public  authorities,  for  the  public  benefit,  has  a 
strong  natural  equity  for  compensation,  and  as  statutes  making 

icies  the  amount  received  by  him  from  the  corporation:  Mayor,  &c.  of  New 
York  v.  Pentz,  24  Wend.  668, 1840.  And  see  Pentz  v.  iEtna  Insurance  Com- 
pany, 9  Paige,  568;  City  Fire  Insurance  Company  v.  Corlies,  21  Wend.  367. 
Interest. — Interest  on  the  amount  should  be  allowed  from  time  of  destruc- 
tion: Mayor,  &c.  v.  Pentz,  24  Wend.  668 ;  25  ifi.  157.  But  not  intermediate 
the  time  of  assessment  and  confirmation  by  the  court:  Lord  v.  Mayor,  &c. 
of  New  York,  3  Hill,  426.  Evidence. — The  opinions  of  bystanders  as  to 
whether  the  buildings  destroyed  would  have  taken  fire,  not  admissible ;  as 
to  the  opinion  of  firemen,  quxre:  Mayor,  &c.  v.  Pentz,  24  Wend.  668. 

1  White  v.  Charleston," 2  Hill  (South  Car.),  571,  1835.  The  result  was 
right,  but  assuming  the  power  to  pass  the  ordinance,  the  decision  should  be 
placed,  we  think,  upon  the  ground  that  the  intendant  was  discharging  a 
public,  as  distinguished  from  a  municipal  or  corporate,  duty,  and  is  not  in  this 
matter  to  be  regarded  as  the  agent  of  the  city,  and  therefore  the  city  would 
not,  on  the  principle  of  respondeat  superior,  be  responsible  for  his  acts: 
jlrrfe,  Sees.  39,  754;  post,  Sees.  772-778,  800-802;  Fisher  v.  Boston,  104  Mass. 
87;  Haffordu.  New  Bedford,  16  Gray,  277;  Wheeler  v.  Cincinnati,  19  Ohio 
St.  19. 


CH.  XXIII.]     ACTIONS  FOR  TORTS. —  PROPERTY  DESTROYED.  715 

the  public  corporation  liable  are  remedial,  while  they  are  not  to  be 
strained  to  cover  cases  not  fairly  embraced  by  them,  they  are 
yet  to  be  liberally  expounded.1  If  the  statute  creating  the  lia- 
bility against  the  corporation  points  out  the  remedy,  that  alone 
can  be  pursued.  Hence  if  the  statute  provides  for  an  assess- 
ment, a  civil  action  will  not  lie  against  the  corporation.2  But 
if  the  statute  gives  the  right  and  prescribes  no  specific  remedy, 
an  action  may  be  brought.3 

§  760.  Public  or  municipal  corporations  are  under  no  com- 
mon law  liability  to  pay  for  the  property  of  individuals  destroyed 
by  mobs  or  riStous  assemblages  ;  *  but  in  such  case,  the  legislature 

1  Mayor,  &c.  of  New  York  v.  Lord,  17  Wend.  285,  292, 1837,  per  Nelson,  C. 
J.;  affirmed,  18  Wend.  126;  Mayor,  &c.  v.  Pentz,  24  Wend.  668;  Stone  «. 
Mayor,  &c.  25  Wend.  157.  In  Massachusetts  it  is  held  that  the  statute  does 
not  apply  to  a  building  which  is  pulled  down  by  order  of  the  public  officers 
after  it  is  so  far  burnt  that  it  is  impossible  to  save  it:  Taylor  v.  Plymouth, 
8  Met.  462, 1844.  And  the  New  York  statute  does  not  impose  a  liability  on 
the  corporation  for  property  which  would  inevitably  have  been  destroyed 
by  the  fire:  Pentz  v.  Mtaa,  Insurance  Company,  9  Paige,  568;  Mayor,  &c. 
of  New  York  v.  Lord,  17  Wend.  285. 

2  Eussell  v.  Mayor,  &c.  of  New  York,  2  Denio,  461,  1845.  Same  princi- 
ple: Infra,  Sec.  784;  supra,  Sees.  653-656. 

8  Lowell  v.  Wyman,  12  Cush.  273,  276,  1853. 

4  Western  College  v.  Cleveland,  12  Ohio  St.  375, 1861.  It  was  held  in  this 
case  that  a  provision  inter  alia  in  the  constituent  act  of  the  city  that  it  "  shall 
be  the  duty  of  the  council  to  regulate  the  police  of  the  city,  preserve  the 
peace,  prevent  riots,  disturbances,  and  disorderly  assemblages,"  had  reference 
to  the  passage  of  ordinances  to  be  enforced  by  officers  appointed  for  the 
purpose,  and  did  not  make  the  city  responsible  for  the  riotous  destruction 
of  property,  or  the  neglect  of  the  officers  of  the  city  in  not  preventing  such 
destruction :  Supra,  Sec.  753.  See,  also,  Prather  v.  Lexington,  13  B.  Mon. 
559, 1852 ;  Ward  v.  Louisville,  16  ib.  l'84, 1855.  In  these  cases  liability  was 
sought  to  be  grounded  on  the  existence  of  power  in  the  officers  to  prevent 
and  suppress  mobs,  and  their  failure  and  neglect  of  duty  in  this  respect.  The 
court  did  not  regard  the  omissions  or  acts  of  the  executive  officers  of  the 
city  as  imposing  any  liability  on  the  city  in  her  corporate  capacity :  Chea- 
ney  v.  Hooser,  9  B.  Mon.  330,  1848.  In  further  support  of  the  doctrine 
stated  in  the  text,  see,  supra,  Sec.  753.  In  re  Pennsylvania  Hall,  5  Pa.  St. 
204, 1847;  Fauvia  w.New  Orleans  (construing  statute),  20  La.  An.  410;  Howe 
v.  New  Orleans,  12  La.  An.  481 ;  Baltimore  v.  Poultney  (construing  Maryland 
legislation),  25  Md.  107, 1866  ;  Martin  v.  Mayor,  &c.  of  Brooklyn,  1  Hill  (N. 
Y.),  545,  551 ;  Underhill  v.  Manchester  (liability  of  towns  under  statute),  45 
N.  H.  214 ;  Chadbourne  v.  Newcastle,  48  N.  H.  — ;  Bailey  v.  The  Mayor,  &c. 
3  Hill,  531 ;  Buttrick  v.  Lowell,  1  Allen  (Mass.),  172;  Ely*.  Supv.  36  N. Y.  297. 


716  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

may  constitutionally  give  a  remedy,  and  regulate  the  mode  of  as- 
sessing the  damages.1 

§  761.  In  considering  the  subject  of  the  implied  liability  of 
municipal  corporations  to  civil  actions  for  misconduct  or  neglect  on 
their  part,  or  on  the  part  of  their  officers,  in  respect  to  corporate  dit- 
ties, resulting  in  injuries  to  individuals,  it  is  essential,  under 
the  authorities,  to  bear  in  mind  the  distinction  pointed  out  in 
a  former  chapter,2  and  to  be  noticed  again  hereafter,3  between 
municipal  corporations  proper,  such  as  towns  and  cities  specially 
chartered  or  voluntarily  organizing  under  general  acts,  and 
involuntary  quasi  corporations,  such  as  townships,  school  districts, 
and  counties  (as  these  several  organizations  exist  in  most  of 
the  states),  including  therein  for  this  purpose  the  peculiar  or- 
ganization, before  referred  to,  known  as  the  Hfew  England 
town.4  The  decisions  of  the  courts  in  this  country  are  almost 
uniform  in  holding  the  former  class  of  corporations  to  a  much 
more  extended  liability  than  the  latter,  even  where  the  latter 
are  invested  with  corporate  capacity  and  with  the  power  of 
taxation ; 5  but  respecting  the  grounds  for  this  difference  there 
is  considerable  diversity  of  opinion.  The  principle  involved 
lies  at  the  basis  of  a  large  class  of  actions  against  municipal 
corporations,  and  it  is  desirable  briefly  to  examine  it  in  the 
light  of  the  adjudications  which  have  established  it.    It  may, 

1  Darlington  v.  Mayor,  &c.  of  New  York,  31  N.  Y.  164,  1865,  cited  ante, 
Sec.  39,  and  notes.  In  re  Pennsylvania  Hall,  5  Pa.  St.  204, 1847  ;  Russell «. 
Mayor,  &c.  of  New  York,  2  Denio,  461, 1845 ;  Lowell  v.  Wyman,  12  Cush. 
273,  276,  1853.  It  is  held,  under  the  statutes  of  Kansas,  that  an  action  against 
a  city,  for  damages  resulting  from  the  hilling  of  a  man  by  a  mob  should  be 
brought  in  the  name  of  the  personal  representative  of  the  deceased :  Atchison 
v.  Twine,  Supreme  Court  Kansas,  1872. 

2  Ante,  Chap.  II.  Sec.  10,  pp.  30-33 ;  p.  82  Sec,  39. 

3  Infra,  Sees.  762,  785,  789. 

4  Ante,  Sees.  11-13,  pp.  34-42. 

6  Ante,  p.  30,  Sec.  10,  and  note ;  Sec.  39 ;  Soper  v.  Henry  County,  26  Iowa, 
264,  1868 ;  Freeholders  v.  Strader,  3  Harr.  (N.  J.)  108,  1840 ;  approved,  3 
Dutch.  (N.  J.)  415;  Cooley,  Const.  Lim.  240,  et  seq.;  Niles  Township  v.  Mar- 
tin, 4  Mich.  557 ;  Larkin  v.  Saginaw  County  (defective  bridge),  11  Mich.  88; 
Lesley  v.  "White,  1  Speers  (South  Car.),  Law,  31 ;  Young  v.  Commissioners, 
&c.  2  Nott  &  McCord,  537 ;  Carroll  v.  Board,  28  Miss.  38 ;  Anderson  v.  State, 
23  ib.  459 ;  Hedges  v.  Madison  County,  1  (jilm,  (111.)  567.  Infra,  Sees,  7,62, 
763,  766,  785,  789,  and  cases  cited. 


CH.  XXIII.]      ACTIONS  FOR  TOUTS. —  NEGLECT  OF  DUTY. '  717 

in  the  first  place,  be  remarked,  that  it  is  a  general  principle 
of  law,  founded  in  reason,  that  where  one  suffers  an  injury  by 
the  neglect  of  any  duty  owing  to  him  which  rests  upon  another, 
the  person  injured  has  his  action.  This  doctrine  applies  not 
only  to  individuals,  but  to  private  corporations  aggregate,  and  it 
obliges  such  corporations  to  respond  in  a  private  action,  though 
such  action  be  not  expressly  given  by  statute,  for  the  damages 
which  another  may  suffer  by  reason  of  neglect  or  default  to 
perform  any  corporate  duty.1 

§  762.  In  this  state  of  the  law  the  question  was  presented 
for  decision  at  an  early  day  in  Massachusetts,  whether  tovms 
in  that  state  (the  statute  being  silent  upon  the  subject),  stood 
upon  the  same  footing  as  respects  liability  for  damages  arising 
from  their  neglect  of  duty  as  individuals  and  private  corpora- 
tions, and  it  was  decided  they  did  not,  and  that  in  order  to 
subject  them  to  a  civil  action  in  favor  of  an  individual  for 
neglect  in  respect  to  their  public  duties,  though  enjoined  by 
statute,  the  legislature  must  expressly  give  the  action.  Ap- 
plying this  principle,  it  was  accordingly  held,  in  Mower  v. 
Leicester,2  that  a  town  was  not  liable  in  a  common  law  action 
for  damages  sustained  by  an  individual  through  a  defect  in  the 
highways  of  the  town.     This  case,  or  the  English  case  upon 

1  As  to  private  corporations,  this  is  well  illustrated  by  the  early  case  in 
Massachusetts,  of  Eiddle  v.  Proprietor  of  Locks  and  Canals,  &c,  7  Mass;  169. 
This  was  an  action  of  case  against  the  defendants,  a  canal  corporation,  who 
were  bound  by  their  charter  to  construct  their  canal  so  deep  and  wide  that 
rafts  of  a  certain  description  could  pass  through  it  when  the  same  could 
pass  the  river  with  which  it  was  connected,  but  which  failed,  to  the 
plaintiff's  injury,  thus  to  construct  their  canal.  It  was  objected  that  no 
private  action  lay  against  a  corporation  for  a  breach  of  its  duty,  even  though 
special  injury  was  suffered,  the  only  remedy  being  by  information  or  indict- 
ment. And  it  was  specially  urged  that  there  were  technical  objections  to 
maintaining  trespass  or  trespass  upon  the  case.  These  objections  were  dis- 
posed of  in  the  most  satisfactory  manner  by  the  terse  and  luminous  judg- 
ment of  Parsons,  0.  J.,  who  decided  that  the  action  would  lie,  and  placed 
the  decision  upon  the  broad  and  clear  grounds  stated  in  the  text;  viz:  that 
private  corporations,  i.  e.  corporations  created  for  their  own  benefit,  equally 
with  individuals,  are  liable  for  any  damages  which  another  may  suffer  by 
reason  of  any  neglect  or  default  to  perform  any  corporate  duty :  Weld  v. 
Proprietors,  &c.  6  Greenl.  93  (liability  of  boom  companies);  Ward  v.  Turn- 
pike Company,  Spencer  (N.  J.),  323,  325 ;  Parnaby  v.  Canal  Co.  11  A.  &  E.  22:?. 

2  Mower  v.  Leicester,  9  Mass.  247, 1812. 


718  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

which  it  was  based,1  has  been  generally  followed  throughout 
the  New  England  States,  and  has  resulted  in  the  establishment 
therein,  and  in  the  very  general  recognition  elsewhere,  of  the 
doctrine  that  without  a  statute  giving  it^  no  private  action  lies 
against  towns  in  New  England  or  other  quasi  corporations  for 
the  neglect  of  duties  enjoined  on  them  by  general  legislative 
enactment  applicable  to  all  such  corporations  as  governmental 
or  public  agencies.  Accordingly,  in  the  different  states,  or* 
ganizations  such  as  counties,  townships,  school  districts,  road 
districts,  and  the  like,  though  possessing  corporate  capacity 

1  Russell  v.  The  Men  dwelling  in  the  county  of  Devon,  2  Term  R.  661. 
In  this  case  an  individual  brought  his  action  against  the  county  for  an 
injury  he  sustained  by  its  neglect  to  repair  a  county  bridge.  The  duty  to 
repair  was  admitted.  That  the  defendant  was  liable  to  indictment  for 
neglect  to  repair  was  conceded.  And  inasmuch  as  it  had  no  corporate  fund, 
or  means  of  obtaining  such  a  fund,  out  of  which  a  judgment  could  be  satis- 
fied, and  because  each  inhabitant  would  be  liable  to  satisfy  the  judgment, 
which  might  be  levied  on  one  or  two  individuals,  who  would  have  no  (prac- 
ticable) means  whatever  of  reimbursing  themselves,"  it  considered  that  the 
action  could  not  be  maintained.  But  this  reason  does  not  apply  to  ordi- 
nary chartered  municipalities,  nor,  in  fact,  to  any  public  body  having  a 
corporate  fund,  or  the  means  of  obtaining  one,  out  of  which  the  judgment 
may  be  satisfied.  In  Riddle  v.  Proprietors,  &c.  7  Mass,  169, 187,  the  decision 
in  Russell  v.  Devon, supra, is  considered  as  based  upon  "sound  reason,"  and 
it  was  approved  in  England  in  Mackinnon  v.  Penson,  25  Eng.  Law  and  Eq. 
457, 1854.  It  is  reviewed  and  commented  on  in  many  subsequent  cases ; 
see  particularly :  Weightman  v.  "Washington,  1  Black,  39,  52,  53 ;  Morey  v. 
Newfane,  8  Barb.  645 ;  Young  v.  Commissioners,  &c.  2  Nott  &  McCord  (South 
Car.),  537;  Beardsley  v.  Smith,  16  Conn.  375;  Ball  v.  Winchester,  32  N.  H. 
443 ;  Eastman  v.  Meredith,  36  N.  H.  284,  1858,'  cited  infra,  Sec.  763,  note. 

Mode  of  enforcing  liabilities  of  New  England  towns:  It  may  be  here  re- 
marked that,  at  common  law,  corporators  are  not  personally  liable  for  the  debts  of 
the  corporation;  but  by  usage  and  practice,  peculiar  in  this  country  to  the  New 
England  States,  quasi  corporations,  as  towns,  counties,  and  parishes,  are  an 
exception  to  this  rule,  and  private  property  may  be  taken  to  satisfy  a  corpo- 
rate judgment.  The  history  of  this  anomalous  usage,  and  the  reasons  for  it, 
are  stated  at  large  by  Church,  J.,  in  Beardsley  v.  Smith,  16  Conn.  368,  1844. 
See,  also,  Union  v.  Crawford,  19  Conn.  331 ;  Fernald  v.  Lewis,  6  Greenl.  264, 
268,  per  Weston,  J. ;  Brewer  v.  New  Gloucester,  14  Mass.  216 ;  Merchants 
Bank  v.  Cook,  4  Pick.  405,  414  ;  Chase  v.  Merrimack  Bank,  19  Pick.  564 ; 
Gaskill  v.  Dudley,  6  Met.  551.  Remedy  of  inhabitant  over :  Beers  v.  Bots- 
ford,  3  Day  (Conn.),  159.  But  it  is  otherwise  in  case  of  corporations  proper ; 
and,  out  of  New  England,  the  author  is  aware  of  no  instance,  even  in  the 
case  of  quasi  corporations  in  which,  without  a  statute  to  that  effect,  private 
property  has  been  considered  liable  tb  pay  public  debts :  Ante,  Sec.  446 ; 
also,  pp.  641,  note,  647,  note ;  North  Lebanon  v.  Arnpld,  47  Pa.  St.  488. 


CH.  XXIII.]      ACTIONS  FOR  TORTS. — NEGLECT  OF  DUTY.  719 

and  power  to  levy  taxes  and  raise  money,  have  been  very  gen- 
erally considered  not  to  be  liable  in  ease,  or  other  form  of  civil  action, 
for  neglect  of  public  duty,  unless  such  liability  be  expressly  declared  by 
statute.1 

1  Treadwell  v.  Commissioners,  11  Ohio  St.  190,  per  Gholson,  J. ;  Hedges  v. 
Madison  county,  1  Gilm.  (111.)  567 ;  Freeholders  v.  Strader,  3  Harr.  (N.  J.) 
108;  Van  Eppes  v.  Commissioners,  25  Ala.  460,1854;  Larkin  v.  Saginaw 
County,  11  Mich.  88 ;  Bray  v.  Wallingford;  20  Conn.  416,  419.  Supra,  p.  30, 
Sec.  10 ;   p.  33,  p.  82,  Sec.  39 ;    Sec.  761,  and  cases  cited. 

Liability  of  counties  for  neglect  of  officials,  &c:  A  county,  though  it  has  power 
to  erect  and  repair  public  buildings,  and  to  levy  and  collect  a  tax  for  that 
purpose,  is  not  responsible,  in  the  absence  of  a  statute  making  it  so,  for  injuries 
resulting  from  the  unsafe  and  dangerous  condition  of  county  buildings,  especially 
where  there  exists  no  statute  authorizing  the  levy  of  a  tax  to  satisfy  such  a 
judgment.  A  county  was  accordingly  held  not  to  be  liable  for  an  injury 
suffered  by  the  plaintiff  who,  when  in  attendance  upon  court  as  a  witness, 
was  precipitated  into  the  cellar  of  the  court  house  in  consequence  of  the 
negligent  omission  of  the  agents  or  officers  of  the  county  to  guard  or  light  a  dan- 
gerous opening  leading  into  the  cellar :  Commissioners  of  Hamilton  County 
v.  Mighels,  7  Ohio  St.  109,  1857,  cited  ante,  p.  31  note,  overruling  the  early 
case  of  The  Commissioners  v.  Butt,  2  Ohio,  348,  recognized,  but  without  ex- 
amination, as  authoritative,  in  Rich?rdson».  Spencer,  6  Ohio,  13;  following, 
Russell  v.  The  Mayor  of  Devon,  2  Term  R.  661 ;  approving,  Riddle  v.  The 
Proprietors,  &c.  7  Mass.  169  ;  Mower  v.  Leicester,  9  Mass.  247 ;  Young  v. 
Commissioners  of  Roads,  2  Nott  &  McCord  (South  Car.),  537 ;  White  v.  City 
Council,  2  Hill  (South  Car.),  571 ;  Ward  v.  County  of  Hartford,  12  Conn. 
404;  Freeholders  v.  Strader,  3  Harris.  (N.  J.)  108 ;  Hedges  v.  County  of  Madi- 
son, 1  Gilm.  (111.)  567;  Fowle  v.  Alexandria,  3  Pet.  409;  Morey  t>.  Newfane,  8 
Barb.  645.  See  similar  case  of  Eastman  v.  Meredith,  infra,  Sec.  763,  note. 
It  was  said,  arguendo,  in  7  Ohio  St.  109,  supra,  that  a  municipal  corporation 
proper,  would,  under  like  circumstances,  have  been  liable :  See,  on  this 
point,  infra,  Sees.  772-779.  So,  in  Georgia,  a  county,  although  it  is  its  duty 
to  keep  a  good  and  sufficient  jail,  is  not  liable  for  an  escape  caused  by  the  in- 
sufficiency of  the  jail,  though  the  sheriff  may  have  been  made  liable  therefor, 
there  being  no  statute  giving  such  an  'action :  The  Governor  v.  Justices, 
<fec.  19  Ga.  97, 1855,  citing  Russell  v.  Men  of  Devon,  2  Term  Rep.  661.  S.  P. 
Haygood  v.  Justices,  20  Ga.  845.  See,  also,  Peters  v.  State,  9  Ga.  109.  County 
courts  in  Missouri  are  not  agencies  of  the  county,  but  a  branch  of  the  state 
judiciary,  and  hence  the  county  is  not  liable  for  their  judicial  action,  or 
non-action :  Miller  v.  Iron  County,  29  Mo.  422  ;  State  v.  St.  Louis  County 
Court,  34  Mo.  546.  The  county  is  part  of  the  body  of  the  state :  Commonwealth 
v.  Brice,  22  Pa.  St.  211.  Is  liable  as  at  common  law  for  services  of  physician 
in  making  a  post  mortem  examination  at  request  of  coroner  :  Alleghney 
County  v.  Shaw,  34  Pa.  St.  301.  But  not  liable  for  medical  treatment  of  pris- 
oner taken  ill  on  his  trial :  Commonwealth  v.  Hall,  7  Watts,  290.  Liability 
of  counties  on  warrants  or  orders :    See  Index :  Orders — Warrants. 


720  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

§  763.  In  New  England,  as  will  hereafter  be  shown,  there 
is,  indeed,  a  liability  upon  both  cities  and  towns  for  injuries 
caused  by  unsafe  or  defective  highways  and  streets,  but  this 
liability  is  wholly  and  strictly  statutory.  The  rule  of  law  just 
mentioned  is  there  adhered  to,  but  it  is  not  of  universal  appli- 
cation even  as  to  towns,  for  it  is  considered  that  there  may  be 
instances  in  which  they  are  civilly  liable  for  neglect  of  duty 
without  an  express  statute  to  that  effect.1  Speaking  of  the  rule 
established  in  the  before  mentioned  case  of  Mower  v.  Leices- 
ter, that  a  private  action  cannot  be  maintained  against  a  quasi 
corporation  for  neglect  of  corporate  duty  unless  the  action 
be  given  by  statute,  Mr.  Justice  Metcalf,  in  a  quite  recent  case,2 
says:  "And  so  it  has  ever  since  been  held  by  this  and  other 
courts.  This  rule  of  law,  however,  is  of  limited  application.  It 
is  applied  in  the  case  of  towns  only  to  the  neglect  or  omission 
of  a  town  to  perform  those  duties  which  are  imposed  upon  al£ 
towns,  without  their  corporate  assent,  and  exclusively  for  pub- 
lic purposes ;  and  not  to  the  neglect  of  those  obligations  which 
a  town  incurs  when  a  special  duty  is  imposed  on  it,  with  its 
consent,  express  or  implied,  or  a  special  authority  is  conferred 
on  it,  at  its  request.  In  the  latter  cases,  a  town  is  subject  to 
the  same  liabilities,  for  the  neglect  of  those  special  duties,  to 
which  private  corporations  would  be,  if  the  same  duties  were 
imposed  or  the  same  authority  conferred  on  them — including 
their  liability  for  the  wrongful  neglect  as  well  as  the  wrongful  acts 
of  their  officers  and  agents." 

1  Oliver  v.  Worcester,  102  Mass.  489, 496,  1869 ;  Blodgett  K.  Boston,  8  Allen, 
237, 1864;  Stiokney  v.  Salem,  3  ib.  374;  Chisey.«.  Canton,  17  Conn.  475,  478, 
1846;  approving  Mower  v.  Leicester,  9  Mass.  247;  Reed  v.  Belfast,  20  Maine, 
246.    Infra,  Sees.  786,  787. 

'  Bigelow  v.  Randolph,  14  Gray  (Mass.),  541,  543, 1860;  Eastman  v.  Mere- 
dith, 36  N.  H.  284,  1856,  and  Conrad  v.  Ithaca,  16  N.  Y.  158,  1857,  elsewhere 
referred  to,  are  approved.  See,  also,. ante,  p.  33,  p.  82,  Sec.  39;  supra,  Sec. 
761,  etseq.;  post,  Sees.  772-778,  800-802. 

New  England  town.— Liability  for  neglect  of  public  duty.— Defective  tovm 
house. — The  question  of  the  right  to  maintain  an  action  against  a  New  Eng- 
land town  (the  nature  of  which  has  been  before  considered),  for  neglect  of 
duty,  in  the  absence  of  statute  either  giving,:or  prohibiting  such  an  action, 
was  learnedly  and  ably  examined  by  the  Supreme  Court  of  New  Hamp- 
shire, in  the  case  of  Eastman  v.  Meredith,  just  mentioned  and  heretofore 
referred  to  {ante,  p.  38,  Sec.  12).  The  material  facts  were,  that  the  defend- 
ant (the town  Qf  Meredith)  built  a  town  house,  in  which,  among  other  pur- 


CH.  XXIII. J      ACTIONS  FOR  TORTS. — NEGLECT  OF  DUTY.  721 

§  764.  But  as  respects  municipal  corporations  proper,  whether 
specially  chartered  or  voluntarily  organizing  under  general  acts 
of  the  character  hefore  alluded  to,1  it  is,  we  think,  universally 
considered,  even  in  the  absence  of  a  statute  giving  the  action, 
that  they  are  liable  for  acts  of  misfeasance  positively  injurious 
to  individuals,  done  by  their  authorized  agents  or  officers,  in 
the  course  of  the  performance  of  corporate  powers  constitur 
tionally  conferred,  or  in  the  execution  of  cdrporate  duties ;  and 
it  is  the  almost,  but  not  quite,  uniform  doctrine  of  the  courts, 

poses,  to  hold  town  meetings.  The  house,  by  the  negligence  of  those  who 
built  it  for  the  town,  was  so  defectively  constructed  that  the  flooring,  at  an 
annual  town  meeting,  gave  way,  and  the  plaintiff,  an  inhabitant  and  legal 
voter,  in  attendance  upon  the  meeting,  received  a  serious  bodily  injury. 
The  plaintiff's  injury  was  caused  by  the  insufficiency  of  the  building.  The 
court  concedes  for  the  argument,  that  it  was  the  duty  of  the  town  to  pro- 
vide a  safe,  and  suitable  place  for  holding  town  meetings  (see  ante,  p.  34, 
note),  and,  treating  the  case  on  this  basis,  states  the  question  to  be  decided 
thus:  "Whether  a  citizen  of  the  town  who  suffers  a  private  injury  in  the 
exercise  of  his  public  rights  from  neglect  of  the  town  to  perform  this  pub- 
lic duty,  can  maintain  an  action  against  the  town  to  recover  damages  for 
the  injury  ?  "  It  was  held  that  the  plaintiff  could  not  recover ;  and  this  de- 
cision rests  mainly  upon  the  ground  that  a  statute  is  necessary,  and  has 
been  uniformly  so  considered  in  New  England  since  the  early  cases  of  Rid- 
dle v.  Locks,  &c.  7  Mass.  169, 187  (supra,  Sec.  762,  note),  and  Mower  v.  Lei- 
cester, 9  Mass.  250  {supra,  Sec.  762),  in  order  to  subject  towns  to  a  civil 
action  for  neglect  to  perform  a  public  duty.  Towns  in  New  Hampshire  and 
the  New  England  states,  it  is  stated,  are  created  by  general  law.  They  give 
no  assent,  at  least  no  express  assent,  to  the  act  creating  them.  They  are 
involuntary  territorial  and  political  divisions  of  the  state,  for  the  purposes 
of  government  and  municipal  regulation.  They  are  declared  by  statute  to 
be  corporations,  but  this  does  not  enlarge  their  duties  or  liabilities  (ante, 
pp.  34-39).  The  case  was  considered  to  be  one  of  new  impression,  and  on 
these  grounds  was  distinguished  by  the  court  from  cases  in  England  de- 
cided under  charters  which  imposed  a  public  duty  upon  the  corporation  as 
the  condition  or  price  of  the  corporate  franchises,  and  from  cases  decided  in 
other  states  in  this  country,  in  which  cities  and  towns  have  been  held  lia- 
ble to  a  civil  action  for  neglect  to  perform  public  duties  growing  out  of 
grants  conferring  special  powers  and  privileges  for  local  advantage  or  ben- 
efit.   [Ante,  p.  82,  Sec.  39;  see  infra,  Sees.  764,  772-778,  789, 802.] 

Conformably  to  these  principles,  it  was  held  in  Bigelow  v.  Randolph,  14 
Gray,  541,  above  cited,  that  a  town  in  Massachusetts  which  has  assumed 
the  duties  of  a  school  district  is  not  liable  for  an  injury  sustained  by  a  scholar 
attending  the  public  school  from  a  dangerous  excavation  tn  the  school  house 
yard,  owing  to  the  negligence  of  the  town  officers.  Unsafe  court  house: 
Supra,  Sec.  762,  note. 

>  Ante,  p.  57,  Sec.  20;  p,  65,  Sec.  24;  p.  67,  Sec.  26. 
91 


722  MUNICIPAL  CORPORATIONS.  [CH.  XXIII. 

that  they  are  also  liable  where  the  wrong  resulting  in  an  in- 
jury to  others  consists  in  a  mere  neglect  or  omission  to  perforin 
an  absolute  and  perfect  (as  distinguished  from  a  discretionary, 
quasi  judicial,  or  imperfect)  corporate  duty,  owing  by  the  cor- 
poration to  the  plaintiff,  or  in  the  performance  of  which  he  is 
specially  interested.1  But  there  is,  as  elsewhere  stated,  not  a 
little  diversity  of  opinion  as  to  what  duties  are  corporate  duties, 
and  when  officers,  though  appointed  or  elected  by  the  corpora- 
tion, are  to  be  regarded  as  the  officers  of  the  corporation,  and 
not  of  the  state  or  the  general  public.2  And  especially  have 
the  courts  been  much  perplexed  respecting  the  principle  upon 
which  to  rest  the  distinction,  so  generally  taken,  by  which 
what  is  termed  a  quasi  corporation,  though  possessing  full  cor- 
porate capacity  and  a  corporate  purse,  is  not  impliedly  liable  for 
acts  of  misfeasance  or  neglect  of  public  duty  on  the  part  of  its 
officers  and  agents,  while  for  the  same  or  a  similar  wrong  there 
is  such  a  liability  resting  on  municipal  or  chartered  corpora- 
tions. But  the  distinction,  whatever  its  ground,  is  well  established; 
and  the  latter  class  of  corporations  is  considered  to  be  impliedly 
liable  for  acts  done  in  what  is  termed  their  private  or  corporate 
character,  and  from  which  they  derive  some  special  or  imme- 
diate advantage  or  emolument,  but  not  as  to  those  done  in 
their  public  capacity,  as  governing  agencies,  in  the  discharge  of 
duties  imposed  for  the  public  or  general  (not  corporate)  ben- 
efit.3 

§  765.  Not  only  is  the  distinction  just  mentioned  well  estab- 
lished, but,  as  practically  applied  in  the  reported  judgments  of 
the  courts,  it  has  tended  to  promote  justice  and  to  secure  in- 
dividual rights.  This  liability  on  the  part  of  municipal  cor- 
porations springs,  as  we  think,  from  the  particular  nature  of 

1  Post,  Sec.  778,  and  cases  cited;  Sees.  800-802. 

a  Supra,  Sees.  39,  755, 758,  761-763;  infra,  772-778. 

»  See  eases  cited  ante,  Sec.  39,  pp.  82,  83,  84;  supra,  Sees.  755,  758,  761- 
763;  infra,  Sees.  772-778,  786,  789,  802.  See,  also,  Oliver  v.  Worcester,  102 
Mass.  489,  499,  1869;  Kichmond  v.  Long's  Administrators,  17  Gratt.  (Va.) 
375, 1867;  Western  Savings  Fund  Society  v.  Philadelphia,  31  Pa.  St.  175, 189, 
per  Strong,  J.  These  cases  all  refer  to  the  case  of  Bailey  v.  Mayor,  &c.  of 
New  York,  3  Hill,  531,  and  to  the  distinction  taken  by  Nelson,  O.  J.,  between 
the  public  and  private  capacity  of  municipal  corporations. 


CH.  XXIII.]      ACTIONS  FOR  TORTS. —  NEGLECT  OP  DUTY.  723 

the  duty  enjoined,  which  must  relate  to  the  local  or  special  in- 
terests of  the  municipality,  and  he  imperative,  and  not  discre- 
tionary or  judicial,  and  from  the  means  given  for  its  perform- 
ance, which  must  he  ample  or  such  as  were  considered  to  be 
so  by  the  legislature,  and  not  from  the  supposed  circumstance 
that  they  received  and  accepted  their  charters  or  grants  of 
powers  or  franchises  upon  an  implied  contract  with  the  state  that 
they  would  discharge  their  corporate  duties,  and  that  this  con- 
tract enures  to  the  benefit  of  every  individual  interested  in  its 
performance.1  Unlike  municipal  corporations  created  by  royal 
charters,  which  cannot  be  imposed  or  altered  without  the  con- 
sent of  the  corporators,  except,  indeed,  by  parliament,2  our 
American  corporations,  in  all  their  parts  and  functions,  general 
and  special,  are  mere  emanations  or  creations  of  the  sover- 
eignty of  the  state,  which  confers  and  changes  their  powers  at 
its  will.  There  is  no  relation  of  contract  between  them  and  the 
state;  and  the  notion  that  in  any  accurate  sense  the  state  makes 
a  contract  with  a  municipality,  when  conferring  powers,  either 
for  the  general  or  local  advantage,  seems  to  be  purely  ideal.3 

§  766.  The  rule  of  law  is  a  general  one,  that  the  superior 
or  employer  must  answer  civilly  for  the  negligence  or  want  of  skill  of 
his  agent  or  servant  in  the  course  or  line  of  his  employment,  by 
which  another  is  injured.  Municipal  corporations,  under  the 
conditions  herein  stated,  fall  within  the  operation  of  this  rule 
of  law,  and  are  liable,  accordingly,  to  civil  actions  for  damages 
when  the  requisite  elements  of  liability  co-exist.  To  create 
such  a  liability,  it  is  fundamentally  necessary  that  the  act 
done  Which  is  injurious  to  others  must  be  within  the  scope  of 
the  corporate  powers  as  prescribed  by  charter  or  positive 
enactment  (the  extent  of  which  powers  all  persons  are  bound, 
at  their  peril,  to  know) ;  in  other  words,  it  must  not  be  ultra 
vires  in  the  sense  that  it  is  not  within  the  power  or  authority  of 

1  This  is  the  rationale  of  the  doctrine  of  the  cases,  as  stated  by  Selden,  J., 
in  Weet  v.  Brockport,  16  N..Y.  161, 173,  note,  and  it  is  the  one  adopted  by 
Mr.  Justice  Cooley  in  his  work  on  Constitutional  Limitations,  247,  248,  and 
in  many  reported  cases.  Its  soundness  is  ably  combatted  by  Mr.  Justice 
CampbeU,  in  Detroit  v.  Blakeby,  9  Am.  Law  Keg.  (N.  S.)  670;  S.  C.  21  Mich.  84. 

2  Ante,  p.  44,  Sec.  15. 

8  Ante,  p.  52,  Sec.  17;  p.  63,  Sue.  23;  pp.  70,  71,  Sees.  29,  30;  p.  82,  Sec.  39. 


724  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

the  corporation  to  act  in  reference  to  it  under  any  circum- 
stances.1 If  the  act  complained  of  lies  wholly  outside  of  the  gen- 
eral or  special  powers  of  the  corporation  as  conferred  in  its 
charter  or  by  statute,  the  corporation  can  in  no  event  be  liable, 
whether  it  directly  commanded  the  performance  of  the  act  or 
whether  it  be  done  by  its  officers  without  its  express  com- 
mand; for  a  corporation  cannot,  of  course,  be  impliedly  liable 
to  a  greater  extent  than  it  could  make  itself  by  express,  cor- 
porate vote  or  action.2  But  if  the  wrongful  act  be  not  in  this 
sense  ultra  vires,  it  may  be  the  foundation  of  an  action  of  tort 
against  the  corporation,  either  when  it  was  done  by  its  officers 
under  its  previous  direct  authority,  or  has  been  ratified  or 
adopted,  expressly  or  impliedly,  by  it,  or  when  it  was  done  by 
the  officers,  agents,  or  servants  of  the  corporation,  in  the  exe- 
cution of  corporate  powers  or  the  performance  of  corporate  duties 
of  a  ministerial  nature,  and  was  done  so  negligently  or  un- 
skillfully  as  to  injure  others,  in  which  case  the  corporation  is 
liable  for  the  carelessness  or  want  of  skill  of  its  officers  or  im- 
mediate servants  or  agents  in  the  course  of  their  authorized 
employment,  without  express  adoption  or  ratifying  act.  Such 
are  the  general  principles  of  the  law,  concerning  which  there 
is  no  disagreement;3  but  when  we  come  to  thWr  application, 
considerable  difference  of  opinion  will  be  found  as  to  what  acts 
are,  and  what  are  not,  ultra  vires,  and  what  powers  and  duties 
are,  within  the  meaning  of  the  rule,  as  stated,  corporate  powers 
and  duties;  for  if  the  duty,  though  devolved  by  law  upon  an 
officer  elected  or  appointed  by  the  corporation,  is  not  a  corpor- 
ate duty,  the  officers  of  the  corporation,  in  performing  it,  do  not 
act  for  the  corporation,   and  hence  the   corporation  is  not 

1  Ante,  Sees.  381,  749,  755;  post,  Sec.  766. 

2  lb.    As  to  implied  liability,  see  ante,  Sees.  383-387,  750. 

3  Post,  Sees.  769,  772-778,  781,  789,  800-802.  See,  also,  Thayer  v.  Boston, 
19  Pick.  511, 1837,  where  the  subject  of  the  liability  of  a  municipal  corpora- 
tion for  the  unauthorized  acts  of  its  officers  is  discussed  by  Shaw,  C.  J.; 
Anthony  v.  Adams,  1  Met.  (Mass.)  284, 1840;  Baker  v.  Boston,  12  J"ick.  84; 
Perley  v.  Georgetown,  7  Gray,  464,  1856;  Howell  v.  Buffalo,  15  N.  Y.  512, 
1857;  Baltimore  v.  Eschbach,  18  Md.  276;  State  v.  Kirkley,  29  Md.  85,  110, 
1868;  Harvey  v.  Rochester,  35  Barb.  177/ 1861;  Leman  v.  Mayor,  &c.  of  New 
York,  5  Bosw.  414 ;  Railroad  Company  v.  Quigley  (private  corporation  held 
responsible  for  libel),  21  How.  202, 1§58. 


CH.  XXIII.]  ACTIONS  FOR  TORTS. —  ULTRA  VIRES.  725 

responsible  (unless  expressly  declared  to  be  by  statute)  for  the 
omission  to  perform  it  or  for  the  manner  in  which  it  is  per- 
formed.1 

§  767.  These  general  principles  may  be  illustrated  and  en- 
forced by  a  reference  to  some  of  the  adjudicated  cases ;  and  first, 
the  proposition  that  there  can  be  no  corporate  liability  when  the 
act  complained  of  is  one  not  authorized  by  the  charter,  or  constituent 
act  of  the  corporation,  or  some  valid  legislative  enactment  ap- 
plicable to  it.  "We  have  heretofore  seen  that  contracts  ultra 
vires  in  the  sense  just  explained,  impose  no  corporate  liability,2 
and  for  the  same  reasons,  the  doctrine  applies  to  acts  other  than 
contracts,  whether  performed  by  the  municipal  council,  or 
under  its  direction,  or  by  officers  in  the  execution  of  their  sup- 
posed powers  or  duties.  The  principle  that  a  municipal  cor- 
poration is  bound  by  the  acts  of  its  officers  only  when  within 
the  charter  or  scope  of  their  powers,  and  that  acts  outside  of 
the  powers  of  the  corporation,  or  of  the  officers  appointed  to 
act  for  it,  are  void  as  respects  the  corporation,  is  vital ;  and 
the  opposite  doctrine  has  no  support  in  reason,  and  very  little, 
if  any,  in  the  judgments  of  the  courts.  The  principle  just 
mentioned  is  exemplified  in  an  interesting  manner,  in  a  case8 
where  the  authorities  of  the  city  of  Albany  assumed  to  build  a 
private  bridge  across  the  basin  to  a  pier  in  the  Hudson  river. 
The  only  authority  for  the  performance  of  the  work  was  an 
unconstitutional  statute.  The  bridge  fell,  in  consequence  solely 
of  the  negligent  and  improper  manner  in  which  it  had  been 
constructed  by  the  city.  It  was  decided  by  the  Court  of  Ap- 
peals, reversing  the  judgment  of  the  Supreme  Court,  that  the 
corporation  was  not  liable  to  an  action  for  damages  at  the  suit 
of  a  person  injured  by  the  accident. 

1  Supra,  Sees.  755,  758,  763;  infra.  Sees.  772-778,  800-802. 

2  Ante,  Sees.  381,  749,  755,  766. 

8  Mayor,  &c.  of  Albany  v.  Cunliff,  2  Comst.  165, 1849,  reversing  S.  C.  2 
Barb.  190. 

A  case  in  Illinois  may  here  appropriately  be  noticed,  which,  in  connec- 
tion with  the  one  just  stated,  will  illustrate  the  principle  on  which  the  liabil- 
Hy.of  the  corporation  depends.  By  statute,  a  city  was  authorized  "to  con- 
struct an  embankment  and  plank  road"  across  a  certain  bottom,  and  under 
this  authority  constructed  a  pile  bridge  across  the  bottom  in  so  careless1  a 
manner  that  the  horse  of  plaintiff,  when  rightfully  upon  the  way,  fell 


726  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

§  768.  So,  upon  the  same  principle,  where  the  selectmen  of  a 
town  caused  a  dam  to  be  erected  (an  act  the  town  was  not  authorized 
by  law  to  do)  which  flooded  the  plaintiff's  land,  the  town  was  held 
not  liable  for  tbe  injuries  resulting  therefrom.1  So  a  city  cor- 
poration has  no  legal  power  or  right  to  call  a  meeting  of  the  citi- 
zens to  consider  political  or  philanthropic  purposes  ;  and  if  it  does 
so  even  by  ordinance  of  its  common  council,  and  a  person  at 
a  meeting  thus  assembled  is  injured  by  the  discharge  of  a  can- 
non fired  by  persons  present,  the  corporation  is  not  liable.2 
So,  in  another  case,  the  incorporating  act  prohibited  the  trustees 
of  a  village  corporation  from  laying  out  any  street  so  as  to  run  over 
the  site  of  any  building  the  expense  of  removing  which  should 
exceed  one  hundred  dollars.  The  object  of  this  prohibition 
was  considered  to  be  to  protect  the  tax-payers,  as  well  as  for 
the  benefit  of  the  owners  of  buildings.  The  trustees,  exceed- 
ing their  powers,  laid  out  a  street  in  the  site  of  which  there 
was  a  building,  the  expense  of  moving  which  would  exceed 
the  sum  named.  In  an  action  brought  against  the  corporation 
by  the  land  owner  whose  property  was  taken  for  the  street,  it 
was  decided  by- the  Supreme  Court  of  New  York  that  the 
whole  proceeding  was  a  nullity,  and  that  the  corporation  was 
not  estopped  to  set  up  the  want  of  jurisdiction  in  defence,  not- 
withstanding the  property  of  the  plaintiff  had  actually  been 
taken.3 

through  and  was  killed.  When  sued  for  this  injury,  the  defence  of  the  city 
was,  that  it  was  only  authorized  to  build  an  embankment  and  plank  road, 
and  that  in  building  the  pile  bridge  it  exceeded  its  authority,  and  hence  it  is 
not  the  act  of  the  city,  but  only  of  its  officers,  and  therefore  the  city  is  not 
responsible  for  the  injury.  But  the  court  held,  inasmuch  as  the  city  was 
authorized  to  construct  a  road  at  the  place  where  it  constructed  this  road, 
that  its  failure  to  construct  it  in  the  designated  mode  but  made  its  liability 
the  more  plain,  distinguishing  the  case  from  one  where  the  officers  of  the 
city  should,  without  authority,  construct  such  a  work  in  another  jurisdiction : 
Pekin  «.  Newell,  26  111.  320,  1861. 

1  Anthony  v.  Adams,  1  Met.  (Mass.)  284,  1840.  Approved,  "Walling  v. 
Shreveport,  5  La.  An.  660,  1850.    Infra,  Sec.  797. 

2  Boyland  v.  Mayor,  &c.  of  New  York,:i  Sandf.  (S.  C.  K.)  27,  1847.  Same 
Principle,  Boom  v.  TJtica,  2  Barb.  104  (trespass  by  agent  where  corporation 
had  no  power  involves  no  corporate  liability):  Ouyler  v.  Rochester,  12 
Wend.  165 ;  Swift  v.  Williamsburg,  24  Barb.  427 ;  Starr  v.  Rochester,  6  Wend. 
564.    Morrison  v.  Lawrence  (injury  by  city  fireworks),  98  Mass.  219, 1867. 

3  Cuyler  v.  Rochester,  12  Wend.  165, 1834. 


CH.  XXIII.]  ACTIONS  EOR  TOUTS. —  MISFEASANCE.  727 

§  769.  Cases  such  as  those  just  mentioned  are  to  be  distin- 
tinguished  from  others  which  resemble  them  in  the  circumstance 
of  relating  to  illegal  acts,  but  which  arise  out  of  matters  or 
transactions  within  the  general  powers  of  the  corporation,  and 
in  respect  of  which  there  may  be  a  corporate  liability.  Thus, 
if  in  exercising  its  power  to  open  or  improve  streets,  the  agents 
or  officers  of  a  municipal  corporation,  under  its  authority  or_ 
direction,  commit  a  trespass  upon,  or  take  possession  of,  private 
property,  without  complying  with  the  charter  or  statute,  the- 
corporation  is  liable  in  damages  therefor.1  In  such  cases,  also, 
an  action  will  lie  against  a  city  corporation  by  the  owner  of 
land  through  which  its  agents  have  unlawfully  made  a  sewer,2 
or  for  trees  destroyed  and  injuries  done  by  them.3  A  case  in 
Louisiana,  which  was  several  times  before  the  courts  in  that 
state,  was  decided  upon  the  same  principle.  The  mayor  of  a 
city  tortiously,  and  in  defiance  of  an  injunction,  proceeded  at 
the  head  of  a  force  of  laborers  and  demolished  a  portion  of  the 
plaintiff's  house,  for  the  supposed  reason  that  it  was  on  public 
ground.     The  city  corporation  ratified  the  act  by  defending  it. 

That  acts,  ultra  vires,  though  done  colore  officii,  impose  no  corporate  liabitity  : 
See  Baltimore  v.  Eschbach,  18  Md.  276;  16.  284;  State  v.  Kirkby,  29  Md. 
85,  111,  1868 ;  Horn  v.  Baltimore,  30  Md.  218,  1868,  approving,  Howell  v. 
Buffalo,  15  N.  Y.  512 ;  Cole  v.  Nashville,  4  Sneed  (Term.),  162, 1856,  cited  ante, 
Sec.  755,  note ;  Mitchell  v.  Rockland,  52  Maine,  118,  reaffirming  S.  C.  45  ib. 
496 ;  41  ib.  363,  where  the  health  officers  of  a  town,  without  authority  of 
law,  took  possession  of  the  plaintiff's  vessel,  and  in  the  process  of  fumu- 
gation,  set  it  on  fire,  and  the  town  was  held  not  liable. 

1  Hildreth  v.  Lowell,  11  Gray,  345, 1858,  approving  Thayer  v.  Boston,  19 
Pick.  516,  1837 ;  Soulard  v.  St.  Louis,  36  Mo.  546,  1865  ;  Walling  v.  Shreve- 
port,  5  La.  An.  660,  1850 ;  Allen  v.  Decatur  (trespass),  24  111.  332,  1860 ;  Lee 
v.  Sandy  Hill,  40  New  York,  442, 1869,  where  a  corporate  liability  was  as- 
serted ior  the  torts  of  the  highway  officers  in  encroaching  upon  the  plaintiff's 
property  by  direction  of  the  governing  body  of  the  corporation,  under  the 
erroneous  supposition  that  it  was  part  of  the  street :  Mason,  J.,  approves  of 
the  rule  as  stated  by  Shaw,  C.  J.,  in  Thayer  v..  Boston,  supra.  Infra,  Sees. 
771,  772. 

In  Soulard  v.  St.  Louis,  supra,  where  a  street  was  opened  upon  land  without 
condemnation,  the  court  held  that  an  action  might  be  maintained  by  the 
owner,  that  he  might  recover  as  damages  the  value  of  the  land  appropriated, 
which,  when  paid,  would,  the  court  was  inclined  to  think,  work  ipso  facto  a 
dedication  thereof  to  the  city  :    Ante,  Sec.  479r 

*  Hildreth  v.  Lowell,  11  Gray,  345, 1858, 

3  Walling  is.  Shreveport,  5  La.  An.  660, 1850, 


728  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

On  the  first  appeal  the  court  doubted  whether  the  corporation 
could  be  made  liable  for  the  wrongful  acts  charged  against  its 
officers,  especially  as  these  were  alleged  to  have  been  done  by 
them  wilfully  and  maliciously.  On  the  second  appeal  it  was 
held,  that  although  the  acts  of  the  mayor  were  done  without 
the  previous  order  of  the  city  council,  yet  the  corporation,  by 
-reason  of  its  subsequent  ratification,  was  liable,  and  the  plaintiff 
recovered.1 

§  770.  Prima  facie,  a  municipal  corporation  is  not  liable  for 
the  trespass  and  wrongful  acts  of  its  officers,  though  done  colore  officii; 
but  it  will  clearly  be  liable  therefor  where  the  act,  if  not 
wholly  ultra  vires,  was  expressly  authorized  by  the  governing 
body  of  the  corporation,  or  where,  without  such  special  author- 
ity, it  was  done  by  its  oflicers  in  the  scope  of  their  duties  and 
employment,  and  has  been  ratified  by  the  corporation.2  Ac- 
cordingly, a  municipal  corporation  is  not  liable  for  the  illegal 
seizure  of  the  plaintiff's  property  by  one  of  its  oflicers,  for  an 
alleged  violation  of  its  ordinances,  when,  in  fact,  no  such  vio- 
lation took  place,  and  the  corporation  had  not  previously  au- 
thorized the  act,  or  subsequently  ratified  it  by  receiving  the 
proceeds  of  the  sale  of  the  property  seized,  or  in  some  other 
manner.3  If,  however,  the  corporation,  by  its  authorized  ac- 
tion, adopts  the  illegal  acts  of  its  officers,  done  in  the  line  of  offi- 
cial duty,  it  will  be  liable  therefor,  however  it  might  be  in  the 
absence  of  such  ratification.  Therefore,  where  the  officers  of 
a  city  illegally  seized  the  personal  property  of  the  plaintiff, 

1  McGary  v.  Lafoyette,  12  Eob.  (La.)  608.  On  re-hearing,  ib.  674.  S.  C. 
again,  4  La.  An.  440, 1849.  Approved,  Wilde  v.  New  Orleans,  12  La.  An.  15, 
1857.  See,  also,  Lee  v.  Sandy  Hill,  supra,  Sec.  769,  note.  Ante,  Sees.  98, 
372,  note. 

2  Thayer  v.  Boston,  19  Pick.  511,  516,  1837,  where  the  rule,  as  stated  by 
Shaw,  C.  J.,  makes  the  corporation,  without  ratification,  liable,  also,  for  the 
acts  its  oflicers  "done  bona  fide,  in  pursuance  of  a  general  authority  to  act 
for  the  city  on  the  subject  to  which  they  relate.''  Approved  by  Mason,  J. ; 
Lee  v.  Sandy  Hill,  40  N.  Y.  442,  449, 1869 ;  compare,  Perley  v.  Georgetown, 
7  Gray,  464, 1856,  cited  infra,  and  statement  of  rule  by  Metcalf,  J. ;  Moore  v. 
Railroad  Company,  4  Gray,  465,  467,  1855;  Howell  v.  Buffalo,  15  N.  Y.  512, 
519,  note  remarks  of  Denio,  C.  J.,  p.  521.  Supra,  Sec.  768,  and  note ;  Angell 
&  Ames,  Sec.  311. 

5  Fox  v.  Northern  Liberties,  3  Watts  &  Serg.  103,  1841.  Infra,  Sec.  773. 


CH.  XXIII.]  ACTIONS  FOR  TORTS. —  MISFEASANCE.  729 

and  detained  it,  and  the  plaintiff  brought  suit  against  the 
city  to  recover  the  property,  and  the  city  filed  an  answer  which 
involved  a  ratification  of  the  acts  of  the  officers  in  question, 
and  an  admission  that  they  were  the  acts  of  the  city,  and  the 
city  was  defeated  in  the  suit,  it  was  held  liable  for  the  damage 
done  to  the  plaintiff  by  the  illegal  seizure  and  detention  of 
his  property.1  On  the  principle  that  a  town  is  not  liable  for 
the  trespasses  or  illegal  acts  of  its  officers  or  agents,  unless 
such  acts  were  done  under  its  authority  previously  conferred, 
or  have  subsequently  been  ratified  by  it,  it  was  held  in  Massa- 
chusetts, that  if  a  town  collector,  without  being  authorized, 
commits  a  person  to  prison  for  not  paying  a  tax,  since  abated, 
though  illegally  included  in  his  warrant,  the  town  is  not  res- 
ponsible, in  an  action  of  tort,  for  false  imprisonment.2 

§  771.  A  municipal  corporation  may  be  liable  as  respects  iMe-r 
gal  and  void  acts,  where  these  are  within  the  scope  of  the  gen- 
eral powers  of  the  corporation,  and  where  the  enforcement  of 
such  acts  by  its  officers  under  its  authority  has  been  compul- 
sory, resulting  in  injury  to  individuals.  Falling  within  thiB 
principle  is  the  liability  of  the  corporation  to  refund  void  taxes 

1  Wilde  v.  New  Orleans,  12  La.  An.  15, 1857 ;  following,  McGary  v.  Lafay- 
ette, 4  ib.  440 ;  Johnson  v.  Municipality,  5  ib.  100.  In  another  case  in  thu 
same  state  it  was  held  that  though  property  be,  in  the  first  instance,  law  ■ 
fully  seized  for  the  violation  of  an  ordinance,  yet  if  the  corporate  authori- 
ties fail  to  pursue  the  requisite  steps  in  advertising  and  disposing  of  th< 
property  seized,  the  act  of  seizure  by  the  officer,  becomes  a  trespass  ab  initio, 
for  which  the  corporation,  it  was  decided,  might  be  liable  to  restore  tin  •■ 
property  or  pay  its  value :  Baumgard  v.  Mayor,  &c.  9  La.  An.  119, 1835. 

2  Perley  v.  Georgetown,  7  Gray,  464, 1856.  Afterwards  paying  the  collector'!* 
fees  for  serving  the  warrant,  and  the  jailer's  charges,  were  held  not  to  rati- 
fy the  arrest,  it  hot  appearing  that  they  were  so  intended.  In  New  York, 
see  Lorillard  v.  Monroe,  11  N.  Y.  (1  Kern.)  392,  1854;  Bank  v.  Mayor,  &<•. 
43  N.  Y.  184.  But  the  treasurer  of  a  town  corporation  is  clearly  its  officer 
and  agent,  for  whose  acts,  within  the  scope  of  his  power,  it  is  liable :  Tuck- 
er v.  Rochester,  7  Wend.  254 ;  cited  2  Denio,  473,  and.see  cases  there  referro  1 
to.  But  it  is  not  liable  for  money  placed  in  his  hands  by  individuals  or 
received  by  him  other  than  in  the  line  of  his  official  duties :  Tolman  »>  . 
Marlborough,  3  N.  H.  57,  59. 

The  previous  personal  and  unauthorized  act  of  a  public  officer  will  E"t 
estop  him  from  acting  in  his  public  capacity  as  he  may  deem  the  public 
good,  to  require  :  Day  v.  Green,  4  Cush.  433, 1849;  t>ill  v.  Wareham,  7  Mi:. 
-433,  1844.  , 

92 


730  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

and  assessments  compulsorily  collected  for  its  own  benefit.1  So 
where  a  municipal  corporation  made  a  void  assessment  upon  the 
plaintiff  for  a  street  improvement,  and  its  officers  seized  its 
property  (bank  bills)  to  pay  it,  the  majority  of  the  Court  of 
Appeals  of  New  York  held,  and  we  think  properly,  that  since 
the  assessment  was  made  for  a  purpose  within  the  general 
powers  of  the  corporation  (though  the  particular  assessment 
was  illegal)  the  corporation  was  liable  to  the  plaintiff  in  a  com- 
mon law  action  for  the  trespass  committed  by  its  officers  in 
seizing  his  property.2 

§  772.  It  may  be  observed,  in  the  next  place,  that  when  it 
is  sought  to  render  a  municipal  corporation  liable  for  the  act 
of  servants  or  agents,  a  cardinal  inquiry  is,  whether  they  are  the  ser- 
vants or  agents  of  the  corporation.  If  the  corporation  appoints  or 
elects  them,  and  can  control  them  in  the  discharge  of  their 
duties ;  can  continue  or  remove  them ;  can  hold  them  respon- 
sible for  the  manner  in  which  they  discharge  their  trust ;  and 
if  those  duties  relate  to  the  exercise  of  corporate  powers,  and 
are  for  the  peculiar  benefit  of  the  corporation  in.  its  local  or 
special  interest,  they  may  justly  be  regarded  as  its  agents  or 
servants,  and  the  maxim  of  respondeat  superior  applies.  But  if,  on 
the  other  hand,  they  are  elected  or  appointed  by  the  corpora- 
tion in  obedience  to  the  statute,  to  perform  a  public  service  not 
peculiarly  local  or  corporate,  but  because  this  mode  of-  selec- 
tion has  been  deemed  expedient  by  the  legislature  in  the  dis-' 
tribution  of  the  powers  of  government,  if  they  are  independent 
of  the  corporation  as  to  the  tenure  of  their  office  and  the  man- 
ner of  discharging  their  duties,  they  are  not  to  be  regarded  as 
the  servants  or  agents  of  the  corporation,  for  whose  acts  or 
negligence  it  is  impliedly  liable,  but  as  public  or  state  officers 
with  such  powers  and  duties  as  the  statute  confers  upon  them, 

1  Supra,  Sec.  750,  and  cases  cited. 

2  Howell  v.  Buffalo,  15  N.  Y.  512,  1857  ;  Denio,  C.  J.,  and  Bowen,  J.,  dis- 
sented. The  chief  judge,  in  his  dissenting  opinion,  expressed  his  inability 
to  see  how  the  assessment  could  be  void,  and  yet  be  a  corporate  act  and  im- 
pose a  corporate  liability.  The  majority  opinion  can,  we  think,  be  sus- 
tained on  the  principle  stated  in  the  text:  Bennett  v.  Buffalo,  17  N.  Y.  383,, 
386,  corrects  the  report  of  Howell  v.  Buffalo,  so  as  to  show  that  Comstock,  J.> 
agreed  with  the  majority  of  the  court  as  to  the  liability  of  the  corporation  : 
Bank,  &c.  v.  Mayor,  &c.  43  N.  Y.  184. 


CH.  XXIII.]   ACTIONS  FOR  TOUTS. — RESPONDEAT  SUPERIOR.  731 

and  the  doctrine  of  respondeat  superior  is  not  applicable.1  It  will 
thus  be  seen  that,  on  general  principles,  it  is  necessary,  in  or- 
der to  make  a  municipal  corporation  impliedly  liable  on  the 
maxim  of  respondeat  superior  for  the  wrongful  act  or  neglect  of 
an  officer,  that  it  be  shown  that  the  officer  was  its  officer,  either 
generally  or  as  respects  the  particular  wrong  complained  of, 
and  not  an  independent  public  officer;  and,  also,  that  the 
wrong  was  done  by  such  officer  while  in  the  legitimate  exer- 
cise of  some  duty  of  a  corporate  nature  which  was  devolved 
on  him  by  law  or  by  the  direction  or  authority  of  the  corpora- 
tion.2 

1  The  Mayor,  &c.  v.  Bailey  (Oroton  Dam  Case),  2  Denio,  433,  447, 1845,  and 
authorities  cited  by  Hand,  senator.  Infra,  Sec.  779 ;  Walcott  v.  Swampscott 
(surveyor  of  highways),  1  Allen  (Mass.),  101,  1861,  per  Bigelow,  C.  J. ;  infra, 
Sec.  777;  White  v.  Phillipston,  10  Met.  108;  Hafford  v.  New  Bedford,  16 
Gray,  297, 1860;  infra,  Sec.  774;  Griggs  v.  Foote,  4  Allen,  195, 197;  Buttrick 
v.  Lowell  (assault  by  police  officer),  1  Allen,  172, 1861 ;  infra,  Sec.  773 ;  Kim- 
ball v.  Boston,  1  Allen,  417;  Child  v.  Boston  (sewers),  4  Allen,  41,  52, 1862; 
Morrison  v.  Lawrence,  98  Mass.  219,  1867;  infra,  Sec.  802;  supra.  Sees.  758, 
762. 

Thus,  in  New  York,  the  mayor  and  aldermen,  in  making  an  order  for 
the  destruction  of  a  building  pursuant  to  the  statute  (2  R.  L.  1813,  p.  368,  Sec. 
81),  were  considered  to  act  not  as  the  officers  or  agents  of  the  corporation,  but  as 
magistrates  or  public  officers,  designated  by  their  official  names  by  the  legis- 
lature for  the  execution  of  a  public  duty :  Russell  v.  Mayor,  &c.  of  New 
York,  2  Denio,  461,  opinion  of  Sherman,  senator,  at  p.  473,  and  of  Porter, 
senator,  at  p.  481.  The  case  was  distinguished  from  that  of  Bailey  v.  The 
Mayor,  &c.  of  New  York,  2  Denio,  433 ;  affirming,  S.  C.  3  Hill,  531,  in  rela- 
tion to  the  Croton  aqueduct, "where,  on  the  ground  that  the  corporation  had 
an  interest  in  the  grant,  held  property  under  it,  and  passed  ordinances  in 
relation  to  the  execution  of  the  work,  it  was  held  liable  for  the  acts  and 
neglect  of  the  water  commissioners  in  relation  to  the  work,  though  they  were 
appointed  by  the  governor  and  the  senate;  supra,  Sees.  757,  758;  infra,  Sec. 
779. 

As  to  the  personal  liability  of  public  officers  or  agents  created  by  statute,  for 
official  acts  and  neglect,  see  Nowell  v,  Wright,  3  Allen  (Mass.),  166,  and 
cases  cited.    Ante,  Sec.  176,  and  note. 

,2  Same  authorities.  Infra,  Sees.  773-778.  Respondeat  superior.  Corpora- 
tions— when  liable  and  when  not  for  the  torts  of  their  officers:  Hilsdorf  v.  St. 
Louis,  45  Mo.  94;  Lyman  v.  Bridge  Company,  2  Aiken  (Vt.),  255,  1827; 
Hinde  v.  Navigation  Company,  15  111.  73 ;  Morrison  v.  Lawrence,  98  Mass. 
219 ;  Fisher  v.  Boston,  104  Mass.  87, 1870 ;  Stewart  v.  New  Orleans,  9  La.  An. 
461 ;  Bennett  v.  New  Orleans,  14  La.  An.  120, 1849;  Mitchell  v.  Rockland,  52 
Me.  118;  Small  v.  Danville,  51  Me.  359;  distinguished  from  Thayer  v.  Bos- 
ton, 19  Pick.  511 ;  Alcorn  v.  Philadelphia  (city  surveyor),  44  Pa.  St.  348, 1863 ; 


732  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

§  773.  Agreeably  to  the  principles  just  mentioned,  police 
officers  appointed  by  a  city  are  not  its  agents  or  servants,  so  as  to 
render  it  responsible  for  their  unlawful  or  negligent  acts  in  the 
discharge  of  their  duties ;  and,  accordingly,  a  city  is  not  liable 
for  an  assault  and  battery  committed  by  its  police  officers,  though 
done  in  an  attempt  to  enforce  an  ordinance  of  the  city ;  *  nor  for 
an  arrest  made  by  them  which  is  illegal  for  want  of  a  warrant; 3 
nor  for  their  unlawful  acts  of  violence,  whereby,  in  the  exercise 
of  their  duty  of  suppressing  an  unlawful  assemblage  of  slaves, 
the  plaintiff's  slave  was  killed.3  So,  on  the  same,'  principle,  a 
person  who  suffers  a  personal  injury  while  aiding  the  police  officers 
of  a  city,  at  their  request,  in  arresting  disturbers  of  the  public 
peace  under  a  valid  ordinance,  has  no  remedy  against  the  city.1 

Reilly  v.  Philadelphia  (when  contractor  for  local  improvement  is  the  agent 
of  the  city),  60  Pa.  St.  467;  Hilliard  v.  Eichardson,  3  Gray  (Mass.),  349;  ap- 
proved and  distinguished  in  Chicago  v.  Bobbins,  2  Black  (U.  S.),  418,  428 ; 
Ready  n.  Mayor,  &c.  (acts  of  city  marshal)  6  Ala.  327, 1844;  Cowley  v.  Sun- 
derland (mayor  of)  6  H.  &  N.  565. 

1  Buttrick  v.  Lowell,  1  Allen,  172,  1861 ;  Kimball  v.  Boston,  ib.  417 ;  ante, 
p.  76,  Sec.  33;  p.  78,  Sec.  34;  supra,  Sec.  770.  See,  also,  Atwater  *.  Balti- 
more, 31  Md.  462, 1869,  in  which  it  was  held  that  the  city  was  not  liable  for 
the  neglect  of  the  board  of  police  commissioners,  who  are  not  appointed  by, 
or  responsible  to,  the  corporation;  distinguished  from  Marriott  v.  Baltimore, 
9Md.  160. 

2  Pesterfleld  v.  Vickers,  3  Coldw.  (Tenn.)  205, 1866,  approving  Buttrick  v. 
Lowell,  supra.  Nor  for  the  act  of  the  recorder  in  wrongfully  refusing  bail;  the 
remedy  in  such  cases  must  be  sought  against  the  officers  personally :  Ib. ; 
Beady  v.  Mayor,  &c.  (city  marshal)  6  Ala.  327,  1844. 

3  Stewart  v.  New  Orleans,  9  La.  An.  461,  1854.  S.  P.  in  similar  action, 
Dargan  v.  Mobile  (slave  negligently  killed  by  an  officer  of  the  city  guard  in 
attempting  to  arrest  him  for  a  breach  of  its  ordinances — city  held  not  lia- 
ble), 31  Ala.  469, 1858.  The  opinion  of  Walker,  J.,  is  well  considered.  Com- 
pare Johnson  v.  Municipality,  5  La.  An.  100, 1850,  in  which  the  corporation 
was  held  liable  for  the  neglect  of  duty  on  the  part  of  the  keeper  of  the  police 
jail,  resulting  in  the  death  of  the  plaintiff's  slave.  The  decision  is  upon  the 
ground  that  the  keeper  was  the  agent  of  the  corporation,  and  that  it  was 
liable  for  his  acts  and  defaults  in  the  discharge  of  his  duties;  but  qusere,  and 
see  comments  of  Walker,  J.,  in  Dargan  v.  Mobile,  31  Ala.  469,  477,  1858 ; 
Richmond  v.  Long's  Administrators,  17  Gratt.  ( Va.)  375,  1867,  approving 
Stewart  v.  New  Orleans,  and  Dargan  v.  Mobile,  above  cited. 

Liability  of  city  for  loss  of  slave  put  to  work  in  city  chain  gang:  Clague  ». 
New  Orleans,  13  La.  An.  275. 

4  Cobb  v.  Portland,  55  Maine,  381,  1868;  Sutton  e.  Board  of  Police,  41 
Miss.  236. 


CH.  XXIII.]   ACTIONS  FOE  TORTS. — RESPONDEAT  SUPERIOR.  733 

The  municipal  corporation  in  all  these  cases  represents  the 
state  or  the  public ;  the  public  officers  are  not  the  servants  of 
the  corporation,  and  hence  the  principle  of  respondeat  superior 
does  not  apply. 

§  774.  So,  although  a  municipal  corporation  has  power  to 
extinguish  fires;  to  establish  a  fire  department;  to  appoint  and 
remove  its  officers,  and  to  make  regulations  in  respect  to  their 
government,  and  the  management  of  fires,  it  is  not  liable  for 
the  negligence  of  firemen  appointed  and  paid  by  it,  who,  when 
engaged  in  their  line  of  duty,  upon  an  alarm  of  fire,  ran  over 
the  plaintiff  in  drawing  a  hose  reel  belonging  to  the  city,  on 
their  way  to  the  fire;1  nor  for  injuries  to  the  plaintiff  caused 
by  the  bursting  of  the  hose  of  one  of  the  engines  of  the  cor- 
poration, through  the  negligence  of  a  member  of  .the  fire  de- 
partment.2 The  exemption  from  liability  is  placed  upon  the 
ground  that  the  service  is  performed  by  the  corporation  in 
obedience  to  an  act  of  the  legislature;  is  one  in  which  the  cor- 
poration has  no  particular  interest,  and  from  which  it'  derives 
no  special  benefit  in  its  corporate  capacity;  that  the  members 
of  the  fire  deparment,  although  appointed  by  the  city  corpora- 
tion, are  not  the  agents  and  servants  of  the  city,  for  whose  con- 
duct it  is  liable;  but,  they  act  rather  as  officers  of  the  city, 
charged  with  a  public  service,  for  whose  negligence  in  the  dis- 
charge of  official  duty  no  action  lies  against  the  city,  without 
being  expressly  given;  and  the  maxim  of  respondeat  superior 
has,  therefore,  no  application.8  Nor  is  such  a  corporation  lia- 
ble to  the  owner  of  property  destroyed  or  damaged  by  fire,  in 
consequence  of  its  neglect  to  provide  suitable  engines  or  fire  appa- 
ratus, or  to  provide  and  keep  in  repair  public  cisterns.4  A  lia- 
bility on  the  part  of  the  corporation  was  sought  to  be  sustained, 
upon  the  ground  of  the  neglect  of  a  corporate  duty,  but  the 
court  considered  that  powers  of  this  nature  conferred  upon 

1  Hafford  v.  flew  Bedford,  16  Gray  (Mass.),  297, 1860. 

*  Fisher  v.  Boston,  104  Mass.  87, 1860;  distinguished  from  Oliver  v.  Wor- 
cester, 102  Mass.  489. 

3  Per  Bigelow,  C.  J.,  in  Hafford  v.  New  Bedford,  supra.    Supra,  Sec.  758. 

*  Wheeler  v.  Cincinnati,  19  Ohio  St.  19,  1869.  S.  P.  Patch  v.  Covington, 
17  B.  Mon.  722, 1856;  Brinkmeyer  v.  Evansville,  29  Ind.  187;  Weightman 
v.  Washington,  1  Black,  39,  49.    Supra,  Seb.  758. 


734  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

municipal  corporations  were  legislative  and  governmental,  and 
excluded  the  notion  of  responsibility  to  individuals  based  on 
neglect  or  nonfeasance,  and  distinguished  the  case  from  those 
in  which  the  duty  is  purely  ministerial. 

§  775.  So  where  a  city,  under  its  charter  and  the  general  law 
of  the  state,  enacted  to  prevent  the  Spread  of  contagious  diseases, 
establishes  a  hospital,  it  is  not  responsible  to  persons  injured 
by  reason  of  the  misconduct  of  its  agents  and  employes  therein; 
and,  accordingly,  the  city  of  Richmond  was  held  not  to  be  liable 
for  the  loss  of  a  slave  admitted  to  the  hospital  of  the  corporation  to 
be  treated  for  the  small-pox,  and  whom  the  servants  of  the 
city  in  charge  of  the  hospital  negligently  suffered,  when  de- 
lirious, to  escape,  wander  off,  and  die.1 

§  776.  A  municipal  corporation  is  not  responsible  for  the 
mistakes  or  the  want  of  care  or  skill  of  the  city  surveyor  or  en- 
gineer, whether  appointed  and  removable  by  it  or  elected  by 
the  people,  when  he  performs  duties  (though  the,  performance 
thereof  be  regulated  by  ordinance)  for  or  between  private  indi- 
viduals—  as  for  example,  fixing  the  boundary  between  their 
lots2.     In  such  case,  the  principle  of  respondeat  superior  does 

1  Richmond  v.  Long's  Administrators,  17  Gratt.  375, 1867 ;  approves  Dar- 
gan  v.  Mobile,  31  Ala.  469;  Stewart  v.  New  Orleans,  9  La.  An.  461;  and  goes 
on  the  ground  that  the  duty  here  was  public,  and  not  private,  and  hence  the 
city  not  liable  for  acts  and  defaults  of  its  officers ;  and  is  itself  approved  and 
followed  in  a  similar  case  in  Missouri :  Murtaugh  v.  St.  Louis,  44  Mo.  479, 1869, 
in  which  it  was  held  that  the  city  was  not  liable  to  a  non-paying  patient  in 
its  hospital  for  injuries  caused  by  the  neglect  or  misconduct  of  the  hospital 
officers  or  servants:  Sherbourne  v.  Yuba  County,  21  Cal.  113,  1862,  holding 
that  a  county  was  not  liable  in  damages  to  an  inmate  of  its  hospital  for  un- 
skillful treatment  of  the  resident  physician.  Powers  in  respect  to  health: 
Ante,  Sees.  95,  303-305.  Liability  for  acts  of  health  officers,  see  ante,  p.  315, 
note;  Rudolphe  v.  New  Orleans,  11  La.  An.  242,  which  was  action  for  dam- 
ages for  alleged  illegal  order  of  board  of  health  in  ordering  a  ship  to  leave 
the  city;  Mitchell  v.  Rockland  (illegal  taking  possession  of  a  vessel),  41 
Maine,  363;  S.  C.  45  Maine,  496, 1858;  re-affirmed,  52  Maine>  118;  Harrison 
b.  Baltimore,  1  Gill  (Md.),  264, 1843,  cited  ante,  p.  137,  Sec.  95. 

2  Alcorn  v.  Philadelphia.  44  Pa.  St.  348, 1863.  Thompson,  J.,  considered  it 
as  a  case  of  first  impression,  and  distinguished  it  from  those  asserting  cor- 
porate liability  for  defective  streets.  Erie  v.  Schwingle,  22  Pa  St.  384, 1853; 
Dean  v.  Milford  Township,  5  Watts  &  Serg.  545;  Dayton  v.  Pease,  4  Ohio 
St.  80, 100, 1854,  per  Ranney,  J.,  and  see  ib.  416;  McCarty  v.  Bauer,  3  Kansas, 
237, 1865  (personal  action  against  engineer  for  erroneous  survey).  When 
personally  liable :  Ib.    Ante,  p.  214,  and  note. 


CH.  XXIII.]   ACTIONS  FOR  TORTS. —  RESPONDEAT  SUPERIOR.  735 

not  apply,  as  it  does  or  may  when  this  officer  acts  for  the  cor- 
poration, or  under  its  direction,  in  making  corporate  improve- 
ments.1 

§  777.  On  the  same  principle,  treating  surveyors  of  highways 
elected  by  the  town  as  public,  rather  than  municipal,  officers, 
a  New  England  town  is  not  liable  for  an  injury  sustained  by  a 
person  by  reason  of  the  negligence  of  a  laborer  in  the  course 
of  his  employment  by  the  highway  surveyor  to  aid  him  in  the 
discharge  of  his  official  duty.  Nor  is  it  liable  for  damages  oc- 
casioned by  the  wrongful  acts  of  the  surveyor  himself  i  n  perform- 
ing his  official  duties.2  But  it  would  be  otherwise  where  the 
working  and  repair  of  streets  is  treated  (as  in  many  of  the  states 
it  is)  as  a  municipal  duty,  and  the  officer  in  charge  as  a  cor- 
porate, in  distinction  from  an  independent  public  officer,  or 
where  the  injury  was  negligently  caused  by  such  officer  in  the 
process  of  executing  upon  the  streets  an  authorized  corporate 
improvement  or  work,  for  then  the  doctrine  of  repondeat  superior 
would  apply.3 

1  Dayton  v.  Pease,  4  Ohio  St.  80,  1854,  where  the  city  was  held  liable  for 
injuries  caused  by  the  fall  of  a  bridge,  owing  to  the  negligence  and  want 
of  skill  of  the  city  engineer;  McCarty  v.  Bauer,  supra;  Rochester  White 
Lead  Company  v.  Rochester,  3  Comst.  (N.  Y.)  463,  1850.    Supra,  Sec.  789.    , 

2  Walcott  v.  Swampscott,  1  Allen,  101,  1861 ;  Barney  v.  Lowell,  98  Mass. 
570;  supra,  Sec.  769,  note.  Compare  Foreman  v.  Canterbury,  Law  Rep.  6 
Q.  B.  214.  Limited  powers  of  New  England  town:  Ante,  p.  34,  Sec.  11 ;  supra, 
Sec.  763,  note.  And  the  surveyor  himself  is  only  liable  in  damages  for 
wanton  malicious  or  improper  acts  in  making  or  repairing  the  highways  in 
his  district:  Rowe  v.  Addison,  34  N.  H.  306,  312,  and  cases  cited.  Ante,  p. 
214,  note  and  cases. 

Constables,  though  appointed  by  the  town,  are  not  its  agents  or  servants, 
and  the  town  is  not  liable  for  their  default,  the  statute  not  having  so  pro- 
vided: Hurlburt  v.  Litchfield,  1  Root  (Conn.),  520,  1793. 

And  so,  in  New  York,  town  assessors  and  collectors  of  taxes  are  independent 
public  officers,  and  not  the  agents  or  servants  of  the  towns  in  their  corpor- 
ate capacity:  Lorillard  ».  Monroe,  11  N.  Y.  392,  1854.  See  Bank  v.  Mayor, 
43  N.  Y.  184. 

In  Vermont,  towns  are  made  liable  by  statute  for  "  default"  or  "neglect" 
of  town  clerks  in  respect  to  official  duties:  Hunter  v.  Winsor  ("index"  or 
"alphabet"  book),  24  Vt.  327;  ib.  338,  580.  What  are  official  acts  or  defaults: 
Lyman  v.  Edgerton,  29  Vt.  305;  Jarvis  v.  Barnard,  30  Vt.  492. 

3  Infra,  Sees.  789, 790, 802;  Rochester  White  Lead  Company  v.  Rochester, 
3  N.  Y.  (3  Comst.)  463;  Eastman  v.  Meredith,  36  N.  H.  295,  per  Perky,  C.  J., 
obiter;  Baker  v.  Boston,  12  Pick.  184;  Thayer  v.  Boston,  19  Pick.  511,  516, 


736  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

§  778.  The  doctrine  may  be  considered  as  established,  that 
where  a  duty  is  a  corporate  one,  that  is,  one  which  rests  upon  the 
municipality  in  respect  of  its  special  or  local  interests,  and  not 
as  a  public  agency,  and  is  absolute  and  perfect,  and  not  discre- 
tionary or  judicial  in  its  nature,  and  is  one  owing  to  the  plaintiff, 
or  in  the  performance  of  which  he  is  specially  interested,  that 
the  corporation  is  liable  in  a  civil  action  for  the  damages  resulting 
to  individuals  by  its  neglect  to  perform  the  duty,  or  for  the 
want  of  proper  care  or  want  of  reasonable  skill  of  its  officers 
or  servants  acting  under  its  direction  or  authority  in  the  execu- 
tion of  such  a  duty ;  and  with  the  qualifications  stated,  it  is 
liable,  on  the  same  principles,  and  to  the  same  extent,  as  an 
individual  or  private  corporation  would  be  under  like  circum- 
stances.1 For  illustration,  if  a  city  neglects  its  ministerial  duty 
to  cause  its  sewers  to  be  kept  free  from  obstructions  to  the 
injury  of  a  person  who  has  an  interest  in  the  performance  of 
that  duty,  it  is  liable,  as  we  shall  see,  to  an  action  for  the 

1837.  Supra,  Sees.  770,  769,  note.  In  Scott  v.  Mayor,  &c.  of  Manchester,  37 
Eng.  Law  &  Eq.  495, 1856  (S.'  C.  1  H.  &  N.  59),  by  the  negligence  of  work- 
men employed  by  the  city  in  laying  its  own  gas  pipes  in  the  streets,  the 
plaintiff's  eye  was  injured,  and  the  city  held  liable,  on  the  principle  of 
respondeat  superior.  Affirmed  on  appeal,  2  H.  &  N.  204.  Same  principle, 
Foreman  v.  Canterbury,  Law  Rep.  6  Q.  B.-214,  1871.  So,  in  Delmonico  v. 
Mayor,  &c.  of  New  York,  1  Sandf.  (S.  C.  R.)  222,  1848,  the  plaintiff  recov- 
ered for  damages  occasioned  by  the  negligence  of  the  defendants  in  con- 
structing a  sewer.  There  was  a  recovery  against  the  city  in  Lloyd  v.  Mayor, 
&c.  of  New  York,  1  Seld.  369, 1851,  for  the  negligence  of  persons  employed 
by  the  proper  officers  of  a  corporation  in  leaving  a  dangerous  hole  in  the 
street  over  night,  in  the  process  of  repairing  the  public  sewers.  Infra,  Sees. 
801,  802,  as  to  sewers;  supra,  Sec.  753.  The  adjudged  cases  differ,  as  else- 
where shown,  as  to  what  are  public,  and  what  corporate,  undertakings ;  but 
the  principle  on  which  the  liability  turns  is  the  one  stated  in  the  text. 

1  Lloyd  v.  Mayor,  &c.  of  New  York,  1  Seld.  369,  1851 ;  McCullough  v. 
Mayor,  &c.  of  Brooklyn,  23  Wend.  458,  1840;  Clayburg  v.  Chicago  (refusal  to 
collect  assessment)  25111.  535, 1861;  Sterrettv.  Houston,  14  Texas,  153, 1855. 
But  was  the  duty  here  a  corporate  one?  McLaughlin  v.  Municipality,  5  La. 
An.  504, 1850;  Walling  v.  Mayor,  &c.  ib.  660;  Richmond  v.  Long,  17  Gratt. 
375, 1867 ;  Sawyer  v.  Corse,  17  Gratt.  ( Va.)  230 ;  Lacour  v.  Mayor,  &c.  of 
New  York,  3  Duer,  406  ;  Conrad  v.  Ithaca,  16  N.  Y.  158, 1857 ;  Barton  v. 
Syracuse,  36  N.  Y.  54.  Supra,  Sec.  753.  Infra,  Sees.  800-802.  The  rule 
stated  in  the  text  should  not,  perhaps,  be  extended  to  a  case  where  the 
effect  of  a  recovery  would  be  to  charge  the  corporate  treasury  with  a  bur- 
den which  does  not  belong  to  it,  and  where  the  person  injured  by  the 
.neglect  to  perform  the  duty  can  compel  an  execution  of  it  by  mandamus  to 


CH.  XXIII.]  ACTIONS  FOB  TORTS.  737 

damages  thereby  occasioned.1  So,  if  a  city  owns  a  wharf  and 
receives  wharfage  or  profit  therefrom,  it  is  liable  for  injuries 
caused  by  a  failure  to  keep  it  in  proper  condition  and  repair.2 
So,  in  respect  to  its  failure  to  keep  its  streets  in  a  safe  condi- 
tion for  public  use,  where  this  is  a  duty  resting  upon  it.3 

The  liability  of  the  corporation  for  its  negligence,  or  that  of 
its  servants,  is  especially  clear  where  it  has  received  a  consid- 
eration for  the  duty  to  be  performed,  or  where,  under  permis- 
sive authority  from  the  legislature,  it  voluntarily  assumes  and 
carries  on  a  work  or  undertaking  from  which  it  receives  tolls 
or  derives  a  profit.4 

§  779.  So  the  city  of  T$e\v  York,  as  the  owner  of  a  dam  on 
the  Croton  river,  situate  upon  lands  the  title  to  which  was  in 
the  city,  and  being  part  of  the  works  built  to  supply  the  city 
with  pure  water,  was,  upon  great  consideration,  held  liable, 
though  the  dam  was  constructed  at  the  instance  and  expense 
of  the  city,  by  water  commissioners  appointed  by  the  state,  and 
not  by,  or  under  the  control  of,  the  city  authorities,  to  an 
action  for  injuries  sustained  by  a  third  person  in  consequence 
of  the  dam  (which  was  negligently  and  unskilfully  built)  being 
carried  away  by  a  freshet.5 

the  proper  officers  of  the  corporation:  McCullough  v.  Brooklyn,  supra. 
Ante,  Sec.  402.  Post,  Sec.  784.  When  duty  rests  upon  the  corporation,  and 
when  upon  its  officers  in  their  individual  capacity :  Ante,  p.  112,  Sec.  63 ; 
Martin  v.  Mayor,  &c.  of  Brooklyn,  1  Hill  (N.  Y.),  145.  Were  the  trustees 
here,  independent  corporate  officers  ?  "    See  Conrad  v.  Ithaca,  16  N.  Y.  158. 

1  Infra,  Sec.  802;  Lloyd  v.  Mayor,  &c.  of  New  York,  1  Seld.  369,  1851. 

2  Ante,  Sec.  77;  Skinkle  v.  Covington,  1  Bush  (Ky.),  617, 1866;  Fennimore 
v.  New  Orleans,  20  La.  An.  124.  Liability  for  dangerous  approach  to,  see 
Carleton  v.  Iron  Company,  99  Mass.  216.    Pittsburg  v.  Grier,  22  Pa.  St.  54. 

*  Infra,  Sec.  789,  et  seq. 

*  Scott  v.  Manchester  (carrying  on  gas  works),  2  Hurl.  &  Norm.  204, 1857, 
affirming  S.  C.  1  ib.  59 ;  Cowley  v.  Sunderland  (mayor  of),  6  ib.  565 ;  Pitst- 
burg  v.  Grier,  22  Pa.  St.  54, 1853  ;  Mersey  Dock  Cases,  11  H.  Lds.  Cases,  687; 
Henly  v.  Mayor,  &c.  of  Lyme  Regis,  2  CI.  &  F.  331. 

6  Mayor,  &c  of  New  York  v.  Bailey,  in  Court  of  Errors,  2  Denio,  433, 1845 ; 
same  case,  names  reversed,  in  Supreme  Court,  3  Hill  (N.  Y.),  531, 1842. 
While  there  was  no  doubt  in  the  opinion  of  the  Supreme  Court,  and  com- 
paratively little  in  the  Court  of  Errors,  that  the  city  was  liable,  there  was 
much  diversity  of  opinion  as  to  the  ground  of  the  liability.  The  Supreme 
Court  (3  Hill,  supra,)  makes  the  case  turn  upon  the  question  "  whether  the 
93 


738  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

§  780.  Upon  similar  grounds,  municipal  corporations,  for 
the  improper  management  and  use  of  their  property,1  are  lia- 
ble to  the  same  extent  and  in  the  same  manner  as  private  cor- 
porations and  natural  persons.  Unless  acting  under  some 
valid  special  legislative  authority,  they  must,  like  individuals, 
use  their  own  so  as  not  to  injure  that  which  belongs  to  an- 
other, or  unjustly  or  improperly  invade  private  rights.  Thus, 
they  may  erect  buildings  for  corporate  purposes,  but  if  in  so 
doing  they  should  place  its  foundations  in  such  a  manner  as 
to    cause   water  to  flow  back  on  private  owners,  the  latter 

water  commissioners  charged  with  the  immediate  superintendence  and  ex- 
ecution of  the  work  stand  in  the  relation  of  agents  deputed  by  the  city  to  per- 
form this  duty.''  They  hold  that  the  city,  by  voluntarily  accepting  the  benefit 
of  the  acts,  by  approving  the  plan  of  the  commissioners,  and  by  instruct- 
ing them  to  proceed  with  the  execution  of  the  work,  adopted  and  constituted 
the  commissioners  the  agents  of  the  city,  and  therefore,  on  the  principle  of  re- 
spondeat superior,  it  was  liable  for  their  neglect  and  want  of  skill  in  the  erection 
of  the  dam.  In  the  Court  of  Errors  (2  Denio,  above  cited),  Chancellor  Wal- 
worth doubted  this  basis  of  the  defendant's  liability,  and  said :  "  It  is  upon 
the  ground  that  the  dam  was  the  property  of  the  city  corporation,  and  that 
such  corporation  was  legally  bound  to  see  that  its  corporate  property  was 
not  used  by  any  one  so  as  to  becomenoxious  to  the  occupiers  on  the  river 
below,  that  the  judgment  (of  the  Supreme  Court)  in  the  case  must  be  sus- 
tained, if  it  can  be  sustained  at  all.  And  upon  that  ground,  though,  I  con- 
fess, with  some  hesitation,  I  shall  assent  to  the  affirmance  of  the  judgment 
of  the  court  below."  It  was  affirmed  by  nineteen  members  against  four ; 
but  as  the  most  of  them  delivered  no  opinions,  the  exact  grounds  of  the 
affirmance  cannot  be  known.  Without  doubting  that  Chancellor  Walworth's 
position  is  sound,  it  seems  to  us  clear  that  the  view  of  the  Supreme  Court, 
that  the  water  commissioners  became  the  agents  of  the  city  by  adoption,  is 
correct.  Denio,  C.  J.,  in  Darlington  v.  Mayor,  &c.  of  New  York,  31  N.  Y. 
164,  200,  speaking  of  Bailey  v.  The  Mayor,  says,  that  the  Court  of  Errors 
substantially  repudiated  the  view  of  the  Supreme  Court,  which  affirmed 
the  enterprise  of  furnishing  the  city  with  water  to  be  a  private  work,  as  dis-> 
tinguished  from  an  act  of  municipal  government,  and  that  the  city  was  held 
liable  on  account  of  its  legal  personality  and  its  responsibility  as  sucu  for 
the  negligent  acts  of  its  agents  and  officers  in  the  execution  of  their  duties: 
Supra,  Sec.  772,  note. 

There  is  no  liability  on  part  of  the  city  as  owner  of  the  Croton  Aqueduct 
for  injuries  from  defects  in  the  lateral  service  pipes  inserted  by  consumers  of 
water  into  the  mains:  Terry  v.  Mayor,  &c.  of  New  York,  8  Bosw.  (N.  Y.) 
694.  See  Cowley  v.  Sunderland,  6  H.  &  N.  565,  as  to  the  liability  of  a  mu- 
nicipal corporation  for  injuries  caused  by  the  unsafe  condition  of  its  prop- 
erty. 

1  See  ante,  Chap.  XV.  on  Corporate  Property;  Cowley  i>. Sunderland 
(mayor  of),  6  H.  &  N.  565. 


CH.  XXIII.]     ACTIONS. —  LIABILITY  AS  PROPERTY  OWNER.  739 

would  have  their  action  for  the  damage,  the  same  as  if  the 
injury  had  been  caused  by  an  individual.1  Similarly,  a  muni- 
cipal corporation,  with  control  of  a  public  common,  traversed  by 
foot-paths,  on  which  the  public  may  rightfully  travel,  is  liable 
to  a  common  law  action  for  damages  caused  by  a  dangerous  and 
unguarded  excavation  made  by  the  corporation  for  its  own  pur- 
poses, in  the  ground  adjoining  one  of  the  paths,  to  a  person 
walking  thereon,  and  who  was  at  the  time  using  due  care.2 
So,  in  a  case  in  which  it  appeared  that  a  city  corporation  was 
the  owner  of  a  market-house,  the  stalls  of  which  it  rented,  but. 
in  front  of  which  there  was  a  pavement  or  open  passage,  which 
it  seems  was  under  the  control  of  the  city  and  not  of  its  lessees; 
in  the  pavement  there  was  a  dangerous  hole  in  front  of  one  of 
the  stalls  into  which  the  plaintiff,  while  attending  the  market, 
fell  and  was  injured ;  the  court  considered  the  market-house 
to  be  the  private  property  of  the  corporation,  that  it  was  its 
duty  to  keep  it  in  a  safe  condition,  and  that  it  was  liable  for 
any  injury  happening  to  individuals  in  consequence  of  its  neg- 
1  ect  to  perform  this  duty.3 

1  Eastman  v.  Meredith,  36  N.  H.  296,  per  Perley,  C.  J. ;  Bailey  v.  Mayor, 
&c.  of  New  York,  3  Hill,  531,  541,  per  Nelson,'  C.  J. ;  Thayer  v.  Boston,  19 
Pick.  511 ;  Rhodes  v.  Cleveland,  10  Ohio,  159;  Lacour  v.  Mayor,  &c.  of  New 
York,  3  Duer,  406, 1854;  Brower  v.  Mayor,  &c.  of  New  York,  3  Barh.  254, 
1848;  Treadwell  v.  Mayor,  &c.  of  New  York,  1  Daly  (N.  Y),  123;  Rochester 
White  Lead  Company  v.  Rochester,  3  N.  Y.  (3  Comst.)  463.  In  Weet  v. 
Brockport,  16  N.  Y.  161, 172,  Mr.  Justice  Selden,  referring  to  Rochester  White 
Lead  Company  v.  Rochester,  just  cited,  says :  "  The  recovery  rested  upon 
the  ohvious  principle  that  a  municipal  corporation  is  no  more  exempt  from 
liability  in  case  it  creates  a  nuisance,  either  public  or  private,  than  an  indi- 
vidual."   Post,  Sees.  797-802. 

Nuisances,  and  power  of  municipal  corporation  to  prevent  and  abate:  See  ante, 
Sees.  308-312;  People  «.  Albany,  11  Wend.  539  (no  power  to  destroy  a  work 
[a  bulkhead]  authorized  by  law,  because  injurious  to  the  public  health) ; 
Hart  v.  Mayor,  &c.  of  Albany,  9  Wend.  571 ;  affirming,  S.  C.  3  Paige,  213 ; 
Denning  v.  Roome,  6  Wend.  651 ;  Wetmore  0.  Tracy,  14  Wend.  250 ;  Roch- 
ester v.  Collins,  12  Barb.  559, 1850;  Ray  v.  Lynes  (blacksmith  shop),  10  Ala. 
63,1846. 

2  Oliver  v.  Worcester,  102  Mass.  489,  499,  1869.  The  principle  is  tersely 
stated  by  Hoar,  J.:  lb.  496;  and  the  authorities  cited  by  Gray,  J.:  lb. 
499.  It  was  considered  to  be  an  act  done  by  the  city  in  its  private,  as  distin-- 
guished  from  its  public  character.    Post,  Sec.  790,  note;  Sec.  795,  note. 

3  Savannah  v.  Cullens,  38  Geo.  334, 1868. 


740  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

§  781.  The  principle  is  well  settled,  and  has,  as  we  shall 
see  in  the  course  of  the  present  chapter,  very  extensive  appli- 
cation to  the  acts  of  municipal  corporations,  viz :  that  such  a 
corporation  is  not  liable  to  an  action  for  consequential  damages  to 
private  property  or  persons  (unless  it  be  given  by  statute) 
where  the  act  complained  of  was  done  by  it  or  its  officers  under 
and  pursuant  to  authority  conferred  by  a  valid  act  of  the  legislature, 
and  there  has  been  no  want  of  reasonable  care  or  want  of 
reasonable  skill  in  the  execution  of  the  power,  although  the 
same  act,  if  done  without  legislative  sanction,  would  be  action- 
able.1 This  is  well  illustrated  by  an  important  case  in  'Wis- 
consin against  the  city  of  Milwaukee,  in  which  the  plaintiff 
sought  to  recover  damages  sustained  by  reason  of  a  harbor  im- 
provement made  by  the  city  under  special  authority  from  the 
legislature.  There  was  no  allegation  that  the  damages  were 
the  result  of  negligence  or  want  of  care  in  making  the  im- 
provement; but  the  recovery  was  sought  because  the  effect  of 
the  improvement  was  to  allow  the  waters  of  the  lake  to  be 

1  Callender  v.  Marsh,  1  Pick.  418,  1823 ;  Eadcliff's  Executors  v.  Mayor,  &c. 
of  Brooklyn,  4  Comst.  195 ;  Bounds  v.  Mumford,  2  Rh.  Is.  154, 1852 ;  Sprague 
v.  Worcester,  13  Gray,  193, 1859;  Bennett  v.  New  Orleans,  14  La.  An.  120, 
1849;  Snyder  v.  Rockport,  6  Ind.  237,  1855;  supra,  Sec.  766;  Perry  v.  Wor- 
cester, 6  Gray,  544;  Flagg  v.  Worcester,  13  Gray,  601,  605, 1859,  per  Merrick, 
J. ;  The  Governors,  &c.  v.  Meredith,  4  Term  R.  794 ;  White  House  v.  Fel- 
lowes,  10  C.  B.  (N.  S.)  779 ;  Mersey  Docks  Cases,  11  House  of  Lords  Cases, 
713,  714, 1866,  per  Blackburn,  J.,  who,  speaking  of  this  subject,  says:  "If  the 
legislature  directs  or  authorizes  the  doing  of  a  particular  thing,  the  doing 
of  it  cannot  be  wrongful.  *  *  But  though  the  legislature  has  authorized 
the  execution  of  the  works,  it  does  not  thereby  exempt  those  authorized  to 
make  them  from  the  obligation  to  use  reasonable  care  that,  in  making  them,  no 
unnecessary  damage  shall  be  done."  The  distinction  is  between  damage 
resulting  from  authorized  works  where  the  legislative  authority  is  a  bar  to 
an  action  unless  given  by  statute,  and  damage  by  reason  of  the  work  being 
negligently  done,  as  to  which  the  remedy  of  the  party  injured  by  action 
remains:  Brine  v.  Railway  Company,  110  Eng.  Com.  Law  (2  Best  &  S.),  402, 
411,  1862,  per  Orompton,  J.  See,  also,  Hicks  v.  Dorn,  42  N.  Y.  47,  1870;  infra, 
Sees.  798,  800-802.    Post,  Sees.  797-802.' 

Where  a  municipal  corporation  possesses  the  legal  authority  to  do  an  act, 
it  is  immaterial  to  inquire  into  its  motives  for  doing  it,  and  erroneous  to  make 
its  liability  depend  upon  the  motives  with  which  the  act  was  done  :  Ben- 
jamin v.  Wheeler,  8  Gray,  409,  1857 ;  Mayor,  &c.  v.  Randolph,  4  Watts  & 
Serg.  (Pa.)  514,  1842  (stopping  water-course) ;  Chatfield  v.  Wilson,  28  Vt. 
49;  S.  C.  5  Am.  Law  Reg.  (O.  S.)  528  ;  infra,  Sec.  783,  note  ;  City  Council  v. 
Gilmer,  33  Ala.  116, 1858. 


OH.  XXIII.]      ACTIONS  FOR  TORTS. —  GRADING  STREETS.  741 

driven  by  the  wind  through  the  canal  or  channel  thus  artifi- 
cially made  by  the  city,  into  and  upon  the  lots  of  the  plaintiff 
in  the  vicinity,  causing  them  to  be  washed  away  and  rendered 
insecure  and  unfit  for  use.  But  the  court  decided  (applying 
the  principle  above  stated)  that  the  plaintiff's  action  could  not 
be  maintained.1 

§  782.  In  connection  with  the  principle  that  there  is  no 
implied  liability  for  doing  an  act  which  is  either  directed  or 
authorized  by  a  valid  statute,  may  be  noticed  the  power  of 
municipal  corporations  to  grade,  and  to  change  the  established 
grade  or  level  of  their  streets,  though  the  exercise  of  the  power 
may  be  injurious  to  the  adjoining  property  owners.  The  pub- 
lic nature  of  streets ;  the  uses  to  which  they  may  lawfully  be 
put;  the  authority  of  the  legislature  over  them ;  the  nature  of 
the  rights  of  the  adjacent  proprietors,  of  the  municipality,  and 
of  the  public  with  respect  thereto ;  and  of  the  delegated 
authority  of  municipal  bodies  or  officers  to  improve  and  grad- 
uate them,  are  topics  which  have  been  considered  in  a  former 
chapter.2  In  view  of  the  nature  of  streets  as  there  explained, 
and  of  that  control  over  them  which  of  right  belongs  to  the 
state,3  and  of  the  nature  of  the  ownership  of  lots  bounded 
thereon,  which  implies  subjection,  if  not  consent,  to  the  exer- 
cise and  determination  of  the  public  will  respecting  what 
grades  or  changes  in  the  grades  thereof  shall,  from  time  to 
time,  be  found  necessary,  and  what  other  improvements  there- 
on or  therein  (within  the  legitimate  purposes  of  streets4)  shall 
be  found  expedient,  it  results,  we  think,  that  adjoining  prop- 
erty owners  are  not  entitled,  of  legal  right,  without  statutory 
aid,  to  compensation  for  damages  which  result  as  an  incident 

1  Alexander  v.  Milwaukee,  16  Wis.  247,  1862 ;  cited  and  distinguished, 
Pettigrew  v.  Evansville  (surface  water),  25  Wis.  223.    Post,  Sec.  798. 

2  Chap.  XVIII.  on  Streets.  Ante,  p.  500,  et  seq.  The  power  to  grade  is  a 
continuing  one :  Ante,  Sec.  543.  "  As  the  duty  of  keeping  the  street  in  re- 
pair is  a  continuing  one,  so  is  the  power  necessary  to  perform  it:"  Per 
Grier,  J.;  Smith  v.  Washington,  20  How.  135, 148, 1857. 

"  Grading,"  as  applied  to  streets,  means  their  "  reduction  to  a  certain  de- 
gree of  ascent  or  descent: "  lb.  Per  Grier,  J.    Ante,  Sees.  542,  619,  note,  636. 
8  Ante,  Sec.  518,  et  seq. 
*  What  are  such  purposes :  Ante,  Sec.  538,  et  seq. 


742  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

I 

or  consequence  of  the  exercise   of  this  power  by  the   state  or 
the  municipality  by  delegation  from  the  state. 

§  783.  Accordingly,  the  courts,  by  numerous  decisions  in 
most  of  the  states,  have  settled  the  doctrine  that  municipal 
corporations,  acting  under  authority  conferred  by  the  legisla- 
ture to  make  and  repair,  or  to  grade,  level,  and  improve 
streets,  if  they  exercise  reasonable  care  and  skill  in  the  per- 
formance of  the  work  resolved  upon,  are  not  answerable  to 
the  adjoining  owner,  whose  lands  are  not  actually  taken,  for 
consequential  damages  to  his  premises,  unless  there  is  a  pro- 
vision in  the  charter  of  the  corporation,  or  in  some  statute, 
creating  the  liability.  There  is  no  such  liability,  even  though 
in  grading  and  leveling  the  street  a  portion  of  the  adjoining 
lot,  in  consequence  of  the  removal  of  its  natural  support,  falls 
into  the  highway.  And  the  same  principle  applies,  and  the 
same  freedom  from  implied  liability  exists,  if  the  street  be  em- 
banked or  raised  so  as  to  cut  off,  or  render  difficult  the  access 
to  the  adjacent  property.  And  this  is  so,  although  the  grade 
of  the  street  has  been  before  established,  and  the  adjoining 
property  owner  had  erected  buildings  or  made  improvements 
with  reference  to  such  grade.1 

1  Callender  v.  Marsh,  1  Pick.  418, 1823,  the  leading  case  on  this  subject, 
and  where  the  question  was  examined  by  Parker,  C.  J.,  with  characteristic 
ability.  The  ground  of  the  doctrine  is  thus  stated  by  him:  "Those  who 
purchase  house  lots  bordering  upon  streets  are  supposed  to  calculate  the 
chance  of  such  elevations  and  reductions  as  the  increasing  population  of  a 
city  may  require,  in  order  to  render  the  passage  to  and  from  the  several 
parts  of  it  safe  and  convenient,  and  as  their  purchase  is  always  voluntary, 
they  may  indemnify  themselves  in  the  price  of  the  lot  which  they  buy,  or 
take  the  chance  of  future  improvements,  as  they  shall  see  fit.  They  are 
presumed  to  foresee  the  changes  which  public  necessity  or  convenience 
may  require : "     1  Pick.  431.    Post,  Sees.  798-802. 

Its  doctrine  has  been  very  generally  followed,  as  will  be  seen  by  the  cases 
below  cited.  In  Massachusetts :  Griggs  v.  Foote,  4  Allen,  195 ;  Brown  v. 
Lowell,  8  Met.  172 ;  Benjamin  v.  Wheeler,  8  Gray,  409. 

In  New  York:  Badcliff's  Executors  v.  Mayor,  &c.  of  Brooklyn,  4  Comst. 
(N.  Y.)  195, 1850,  in  which  the  subject  is  discussed  at  length  by  Bronson,  C. 
J.,  who  holds  that  there  is  no  liability,  both  upon  the  ground  that  the 
damages  complained  of  result  as  an  incident  from  the  exercise  of  legislative 
authority,  and  upon  the  ground  (more  doubtful)  that  the  land  of  the  street 
belongs  to  the  corporation,  and  they  may  level  or  fill  it  at  pleasure,  so  that 
they  do  not  touch  the  adjoining  property.    See,  also,  in  New  York,  Graves 


CH.  XXIII.]      ACTIONS  FOR  TORTS. —  GRADING  STREETS.  743 

§  784.  Provision  in  a  city  charter,  or  other  statute,  author- 
izing the  opening  and  improving  of  streets  or  the  construction 
of  works  of  a  puhlic  nature  therein,  within  the  scope  of  the 

v.  Otis,  2  Hill,  466;  Wilson  v.  Mayor,  &c.  1  Denio,  595, 1845  ;  Benedict  v. 
Goit,  3  Barb.  459 ;  Matter  of  Fifth  street,  17  Wend.  667 ;  Mills  v.  Brooklyn, 
32  N.  Y.  489,  1865.  See  Waddell  v.  Mayor,  &c.  of  New  York,  8  Barb.  95^ 
Post,  Sec.  798. 

So,  also,  in  Pennsylvania :    Green  v,  Reading,  9  Watts,  382,  approved,  20 
How.  (U.  S.)  149.    S.  P.  Reading  v.  Keppleman,  61  Pa.  St.  233  ;    Henry  v 
Pittsburg,  &c.  Company,  8  Watts  &  Serg.  85 ;  Charlton  v.  Allegheny  City,  1 
Grant  Cas.  208 ;   Carr  v.  Northern  liberties,  35  Pa.  St.  324.    In  re  Ridge 
Street,  29  Pa.  St.  391 ;  Commissioners  v-  Wood,  10  Pa.  St.  93.    In  O'Connor 
v.  Pittsburg,  18  Pa.  St.  187,  1851,  approved,  Smith  v.  Washington,  20  How. 
(TJ.  S.)  135, 149,  1859,  a  church  had  been  built  according  to  the  direction  of  the 
city  regulator,  and  in  accordance  with  a  prior  established  grade.    Afterwards, 
the  city  authorities  reduced  the  grade  seventeen  feet ;  the  church  had  to 
be  taken  down  and  rebuilt,  at  an  expense  of  $4,000.   The  authority  given  to 
the  city  was  "to  improve,  repair,  and  keep  in  order  the  streets,"  &c.    The 
Supreme  Court  of  Pennsylvania  say :    "-  We  had  this  case  re-argued,  in 
prder  to  discover,  if  possible,  some  way  to  relieve  the  plaintiff  consistently 
with  law,  but  grieve  to  say  we  can  find  none.    The  law  is  settled,  not  only 
in  Pennsylvania,  but  by  every  decision  in  the  sister  states  except  one  [Ohio, 
see  infra]."     Gibson,  C.  J.,  puts  the  decision  upon  the  ground  that  as  re- 
spects such  matters  the  public  corporatiqn  is,  the  agent  of  the  state,  and 
partakes  of  the  state's  exemption  from  liability  to  be  sued.    Respecting  the 
Qhio  decisions,  below  referred  to,  he  remarks,  that  though  "founded  on 
natural  justice,  they  are  not  founded  in  the  law  which  prevails  elsewhere.' 
So,  in  Indiana :    Snyder  v.  Rockport,  6  Jnd.  (Port.)  237,  1855,  approving 
Radcliff's  Executors  v.  Brooklyn,  supra;  re-affirmed  in  Lafayette  v.  Spencer, 
14  Ind.  399,  I860,  where  the  same  principle  was  held  applicable,  under  the 
general  Municipal  Corporations  Act.    See,  also,  Macy  v.  Indianapolis,  17  Ind. 
267 ;'  Lafayette  v.  Bush.  19  Ind..  326 ;    Vincennes  v.  Richards,  23  Ind.  381 . 
So,  in  Rhode  Island:    Rounds  v.  Mumford,  2  Rh,  Is.  154,  1852.    So,  in  Lou- 
isiana:   Reynolds  v.  Shreyeport,  13  La.  An.  426,  18|56,  approving  Radcliff's 
Executors  v.  Brooklyn,  supra,  and  Goszler  v.  Georgetown,  6  Wheat.  593, 
1821,  cited  ante,  Sec.  542.    So,  in  Georgia:  Rome  v.  Omberg,  28  Ga.  46, 1859 ; 
Roll  v.  Augusta,  34  Ga.  326,  1866 ;    Markham  f.  Mayor,  &c.  23  Ga.  402, 1857. 
Lot  owner  cannot  enjoin  :    lb,    So,  in  Illinois:    Murphy  v.  Chicago,  29  111. 
279,  287,  1862;    Roberts  v.  Chicago,  26   111.   249,   18,61.    So,  in    Tennessee: 
Humes  v.  Mayor,  &c.  1  Humph.  (Tenn.)  403,  1839,.    And  in  Maine:    Hovey 
v.  Mayo,  43  Me.  322, 1857.    So,  in  Missouri,  both  as  to  grade,  and  change  of 
grade :    Taylor  v.  St.  Louis,  14  Mo.  20,  1851 ;  St,  L,quis  v.  Gurno,  12  Mo.  414, 
1849,  following  Callender  v.  Marsh,  supra;  Hoffman  v.  St.  Louis,  15  Mo.  651, 
1852.    So,  in  Connecticut :    Hooker  v.  New  Haven,  &c.  Company,  14  Conn. 
146 ;    Skinner  v.  Bridge  Company,  29  Conn.  523.    So,  in  Iowa :    Creal  v. 
Keokuk,  4  G.  Greene,  47, 1853/approving  Ca.llerider  v.  Marsh,  supra ;  Cotes 
v.  Davenport,  9  Iowa,  227, 1859;   Cole  v.  Muscatine,  14  Iowa,  296;    Ellis  v. 


744  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

legitimate  uses  of  streets  and  highways,  are  not  unconstitu- 
tional, unless  there  be  special  provision  to  that  effect,  because 
they  omit  to  provide  compensation  for  those  who,  although 

Iowa  City,  29  Iowa,  229, 1870;  Burlington  v.  Gilbert,  31  Iowa,  356  ;  Warren 
v.  Henly,  ib.  31, 1870.    So,  in  Mississippi:  White  v.  Yazoo  City,  27  Miss.  327. 

So,  in  the  federal  courts :  Goszler  v.  Georgetown,  6  Wheat.  (U.  S.)  593, 
1821,  cited  ante,  Sec.  542 ;  Smith  v.  Washington,  20  How.  (U.  S.)  135,  where 
the  power  of  the  city  was  "to  open  and  keep  in  repair  streets,"  &c. 

In  Kentucky  the  general  doctrine  that  the  corporation  is  not  liable  for 
consequential  damages  caused  by  changing  the  grade  of  a  street  has  been 
affirmed  by  the  Court  of  Appeals  of  that  state:  Keasy  v.  Louisville,  4  Dana, 
154,  1836,  opinion  by  Robertson,  C.  J.  But  in  a  late  case  in  that  state  the 
majority  of  the  court  qualified  the  doctrine,  and  assumed  a  middle  ground ; 
namely :  that  if  the  improvement  of  the  street  is  of  the  usual  character, 
and  the  incidental  damages  such  as  ordinarily  result,  the  law  affords  no 
remedy ;  but  if  the  improvements  are  extraordinary,  and  peculiarly  injuri- 
ous, they  can  only  be  made  on  condition  that  the  adjoining  owners  be 
compensated.  This  view  makes  the  right  to  compensation  depend,  not 
upon  the  fact  of  injury,  but  the  amount,  and  treats  the  improvement  of  the 
street  as  a  taking  of  the  property  of  the  lot  owner.  If  it  is  a  taking,  then, 
for  any  injury,  he  should  be  entitled  to  compensation.  Robertson,  J.,  dis- 
sented, holding  in  accordance  with  the  prevailing  doctrine  elsewhere,  that 
the  city  might  change  the  grade  as  it  should  judge  the  public  interest  re- 
quired, taking  care  to  avoid  all  peril  or  inconvenience  which  could  be 
avoided  by  a  proper  execution  of  the  work,  and  being  liable  only  for  such 
loss  as  might  be  occasioned  by  the  wanton  and  unskilful  mode  of  execu- 
tion :    Louisville  v.  Rolling  Mill  Company,  3  Bush  (Ky.),  416,  1867. 

In  Ohio  the  law  as  to  the  liability  of  municipal  corporations  has  been  de- 
signedly and  deliberately  carried  beyond  the  limits  established  by  the  cur- 
rent of  decisions  elsewhere.  They  are  here  held  liable  for  consequential 
injuries  which  result  from  the  exercise  of  their  lawful  powers,  though  these 
powers  be  exercised  judiciously,  without  malice,  and  without  illegality,  the 
court  proceeding  upon  the  ground  that  if  an  act  (digging  drains,  as  in 
Rhodes  v.  Cincinnati,  10  Ohio,  159,  or  cutting  down  a  street,  as  in  McCombs 
v.  Akron,  15  Ohio,  474  ;  S.  C.  18  Ohio,  229),  though  legal,  and  legally  ex- 
ecuted, be  done  for  the  good  of  all  to  the  injury  of  an  individual,  the  injury 
should,  in  justice  and  good  morals,  be  shared  by  all.  See  Goodloe  v.  Cin- 
cinnati, and  Smith  v.  Same,  4  Ohio,  500,  514,  injuries  to  property  by  grad- 
ing, and  consult  Crawford  v.  Village  of  Delaware,  7  Ohio  St.  459, 1857 ;  Sco- 
vil  v.  Giddings,  7  Ohio,  part  2,  page  211 ;  Hickox  v.  Cleveland,  8  Ohio,  543, 
which  last  two  accord  with  authorities  elsewhere.  In  Crawford  v.  Delaware, 
supra,  the  doctrine  is  admitted  to  be  in  "direct  conflict  with  the  decisions 
both  in  England  and  America,"  and  known  to  be  so  when  decided.  This 
doctrine,  says  Bronson,  C.  J.,  4  Comst.  195,  205,  supra,  is  not  law  "beyond 
the  state  of  Ohio."  Referring  to  the  Ohio  cases,  the  Supreme  Court  of  Wis- 
consin declare  them  not  to  be  law,  but  observe  that  there  "is  much  justice 
and  equity  in  the  principle  they  adopt : "  Alexander  v.  Milwaukee,  16  Wis. 
247,  256, 1862. 


OH.  XXIII.]       ACTIONS  FOR  TORTS. —  GRADING  STREETS.  745 

their  property  be  not  taken,  suffer  indirect  or  consequential 
damages.  Although  the  adjoining  property  may  be  injured, 
still  it  is  not,  in  a  constitutional  sense,  taken  for  public  use.1    If 

Municipal  power  to  enlarge  liability  by  ordinance  in  respect  to  damages 
caused  by  change  of  grade,  see  Goodall  v.  Milwaukee,  5  Wis.  32, 1856,  but 
qusere.  Approved  by  Paine,  J.,  Weeks  ».  Milwaukee,  10  ib.  242,  270.  '  See 
Pearce  v.  Milwaukee,  18  Wis.  32 ;  Goodrich  v.  Milwaukee,  24  Wis  422  Ante 
Sees.  61,  244,  251,  542. 

Where  the  power  is  not  exceeded,  there  is  no  liability  to  adjacent  owner  for 
grading  the  whole  width,  and  so  close  to  his  line  as  to  cause  his  earth  or  fences 
and  improvements  to^fall,  and  the  corporation  is  not  bound  to  furnish  sup- 
ports or  build  a  wall  to-protect  it :  Taylor  v.  St.  Louis,  14  Mo.  20, 1851 ;  St. 
Louis  v.  Gurno,  12  Mo.  414,  1849  ;  Rome  v.  Omberg,  28  Ga.  46,  1859.'  In 
thus  holding,  Lumpkin,  J.,  who  delivers  the  opinion  of  the  court,  re- 
marks :  "I  confess,  my  convictions  are  not  so  clear  as  I  could  wish  them 
to  be."  The  same  doctrine  was,  however,  subsequently  adhered  to  in  Roll 
v.  Augusta,  34  Ga.  326.  Contra :  M3ars  v.  Wilmington,  9  Ire.  73,  where  the  gen- 
eral rule  is  recognized,  but  where  it  seems  to  have  been  held  that  it  was 
the  duty  of  the  authorities  "to, have  erected  a  substantial  wall  as  the  exca- 
vation proceeded,  and  thus  prevented  the  caving  in  of  the  plaintiff's  lot." 
And  the  substance  of  the  reasoning  of  the  very  able  judge  (Pearson,  J.,)  who 
delivered  the  opinion  is,  that  it  is  implied  that  the  corporation  will  do  the 
work  properly,  and  that  if  in  such  a  case  they  failed  to  take  measures  to  pro- 
tect the  plaintiff's  lot  (which  was  improved),  they  failed  to  do  the  work 
properly,  and  are  liable  to  an  action ;  but  it  seems  difficult,  judicially,  to 
sustain  this  intermediate  ground,  however  just  in  its  results. 

Implied  corporate  liability  recognized  for  working  beyond  or  below  estab- 
lished grade :  Cole  v.  Muscatine,  14  Iowa,  296,  299.  But  this  was  not  the 
main  question  in  the  case. 

Courts  will  not  inquire  whether  the  grade  adopted  be  the  best  one,  or  whether 
one  causing  less  damage  would  not  equally  have  answered  the  purpose 
intended :  Roberts  v.  Chicago,  26  111.  249,  1861 ;  Snyder  v.  Rockport,  6  Ind. 
237, 1855 ;  Reynolds  v.  Shreveport,  13  La.  An.  426,  1856.  And  the  reason  is, 
that  the  determination  of  such  questions  has  been  committed  by  the  legis- 
ture  to  the  governing  body  of  the  corporation,  and  not  to  the  judicial 
tribunals. 

As  to  wantonness,  oppression,  or  malice,  in  exercising  the  power:  Rounds  v. 
Mumford,  2  Rh.  Is.  154,  1852 ;  Reynolds  v.  Shreveport,  supra;  Rudolphe  v. 
New  Orleans,  11  La.  An.  242;  Roberts  v.  Chicago,  26  111.  249, 1861 ;  Mayor 
».  Randolph,  4  Watts  u  Serg.  514, 1842.  Supra,  Sec.  781,  note :  Henderson 
v.  Railway  Company  (Court  of  Exchequer),  25  L.  T.  (N.  S.)  881,  1871. 

1  Callender  v.  Marsh,  1  Pick.  418, 430, 1823;  Thurston  v.  Hancock,  12  Mass. 
220.  Note  doubts  in  dissenting  opinion  of  Mr.  Justice  Story,  in  Charles 
River  Bridge  v.  Warren  Bridge,  11  Peters,  638,  and  note  by  Kent:  2  Kent, 
Com.  340,  note,  6th  ed.  But  the  doctrine  in  the  text  was  asserted  by  the 
Court  of  Appeals,  upon  great  consideration,  in  Radcliff's  Executor  v.  Mayor, 
&c.  of  Brooklyn,  4  Comst.  195,  205,  1850.  S.  P.  What  constitutes  a  taking: 
94 


746  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

in  such  eases,  the  statute  provides  a  specific  remedy,  or  a  remedy 
other  than  an  ordinary  civil  action,  that  remedy  alone  can  be 
pursued.1  Accordingly,  where  a  municipal  charter  provided 
that  whenever  the  common  council  should  change  the  grade 
of  a  street,  "they  should  make  compensation  to  the  owners  of 
property  for  actual  damages  thereby  caused,"  and  provide  for 
such  payment  by  an  assessment  upon  all  real  estate  benefited, 
and  an  action  was  brought  against  the  city  by  an  individual 
injured  by  a  change  in  the  grade  of  a  street,  alleging  as  a 
breach  of  duty  that  the  city  would  not  pay,  or  provide  for  the 
payment  of  the  damages,  it  was  held  that  he  could  not  recover, 
because  the  effect  of  a  recovery  would  be  to  throw  the  burden 
upon  the  whole  city,  when  the  law  imposed  it  on  those  sup- 
posed to  be  locally  benefited.  The  court  regarded  the  case  as 
one  where  the  law  provided  a  special  mode  of  obtaining  pay- 
ment from  a  particular  fund,  and  that  the  plaintiff's  remedy 
was  not  by  a  suit  for  damages,  but  by  mandamus  to  compel  the 
council  to  make  the  assessment  and  collection;  and  the  judg- 
ment of  the  court  was,  we  think,  correct.2 

§  785.  We  come  now  to  consider  the  civil  liability  of  mu- 
nicipal corporations  for  injuries  to  private  persons  caused  by  de- 
fective or  unsafe  streets  and  sidewalks.  And  here  it  is  important 
to  attend  to  the  different  grades  of  corporations,  and  to  keep 

Ante,  Sec.  455;  Cooley,  Const.  Lim.  541.    Legitimate  use  of  streets:  See  chap- 
ter on  Streets,  ante,  Sec.  538,  et  seq. 

1  Hovey  v.  Mayo,  43  Maine,  322,  1857;  Ernst  v.  Kunkle,  5  Ohio  St.  520, 
1856;  Andover  v.  Gould,  6  Mass.  40;  Boston  v.  Shaw,  1  Met.  130;  Cole  v. 
Muscatine,  14  Iowa,  296, 1862.    Supra,  Sec.  759. 

Construction  of  special  statutes:  Cole  v.  Muscatine  (remedy  in  Commission- 
er's Court),  14  Iowa,  296, 1862;  Dalzell  v.  Davenport  (mode  of  estimating 
and  proof  of  damages),  12  Iowa,  437;  Freeland  v.  Muscatine,  9  Iowa,  461. 
Since  the  decision  in  Callender  v.  Marsh,  supra,  the  law  as  there  held  has 
been  changed,  and  a  specific  remedy  provided  for  such  an  injury :  Ferwald 
v.  Boston,  12  Cush.  574.  This  remedy  excludes  a  civil  action  for  all  dam- 
ages necessarily  occasioned :  Flagg  v.  Worcester,  13  Gray,  601, 1859 :  ib.  193 ; 
6  Gray,  544 ;  Benjamin  v.  Wheeler,  8  Gray,  409,  413.  Statute  giving  damage 
caused  by  change  of  grade,  held  to  extend  to  property  outside  of  the  city 
limits,  as  well  as  to  that  within  the  city :  Columbus  v.  Woolen  Mills  Com- 
pany, 33  Ind.  435, 1870. 

2  Reock  v.  Newark,  33  N.  J.  Law,  129,  1868.  Ante,  p.  625,  note ;  rnpra,  Sec. 
778,  note. 


CH.  XXIII.  J    ACTIONS  EOR  TORTS. — DEFECTIVE  STREETS,  &C.  747 

in  mind  the  distinction  between  municipal  corporations  proper 
and  quasi  corporations,  such  as  counties  and  townships,  in- 
cluding therein,  for  this  purpose,  the  towns  of  New  England. 
"With  respect  to  corporations  of  the  character  last  mentioned, 
it  is  almoBt  universally  considered  that  they  are  not  liable  to  a 
civil  action  for  damages '  occasioned  by  defective  roads  and 
bridges  under  their  control  as  public  agencies,  unless  so  de- 
clared by  statute.  In  the  United  States,  there  is  no  common  taw 
obligation  resting  upon  such  corporations  to  repair  highways, 
streets,  or  bridges  within  their  limits,  and  they  are  not  obliged 
to  do  so  unless  by  force  of  statute.  Even  when  the  legislature 
enjoins  upon  corporations  of  this  character  the  duty  to  make 
and  repair  roads,  streets,  and  bridges,  and  confers  the  power 
to  levy  taxes  therefor,  the  general  tenor  of  the.  decisions  is  to 
treat  this  as  a  public,  and  not  a  corporate,  duty,  and  to  regard 
these  corporations,  in  this  respect,  as  public  or  state  agencies,  and 
not  liable  to  be  sued  civilly  for  damages  caused  by  the  neglect 
to  perform  this  duty,  unless  the  action  be  expressly  given  by 
statute.1  As  we  shall  presently  see,2  the  quite  uniform  hold- 
ing of  the  courts  as  to  municipal  corporations  proper  has  been 
otherwise,  though  the  ground  for  the  distinction  which  gives 
an  action  if  the  injury  happens  within  the  limils  of  a  munici- 
pality having  control  of  the  streets  therein,  and  denies  it  if  it 
happens  within  the  limits  of  a  township  or  county  having  equal 
control  over  the  highways  and  adequate  means  of  discharging 
its  public  duties  in  respect  thereto,  is  not  as  satisfactory  to  the 
mind  as  could  be  desired.  "With  few  exceptions,  the  courts 
have  agreed  in  holding  that  these  lower  or  more  general  forms 
of  corporate  organization  are  not  impliedly  liable  to  such 
actions.  There  is  somewhat  more  diversity  of  view  respecting 
the  implied  liability  of  municipal  corporations  proper,  where 

1  Ante,  Sees.  761-765,  and  cases  cited;  ante,  p.  30,  Sec.  10;  Sutton  v.  Board, 
41  Miss.  236, 1866 ;  Larkin  v.  Saginaw  County,  11  Mich.  88 ;  Cooley  v.  Free- 
holders, 3  Dutch.  (N.  J.)  415, 1859,  approving  Freeholders  v.  Strader,  3  Harr. 
(N.  J.)  108, 1840;  Pray  v.  Jersey  City,  32  N.  J.  Law,  394;  Huffman  v.  San 
Joaquin  County,  21  Cal.  426;  Hedges  v.  Madison  County,  1  Gilm.  (111.)  567; 
Detroit  v.  Blakeby,  21  Mich.  84,  per  Campbell,  C.  J. ;  Soper  v.  Henry  County, 
26  Iowa,  264, 1868,  and  see  cases  cited  in  that  state  in  which  counties  are 
held  responsible  for  safe  condition  of  public  bridges. 

*  Infra,  Sec.  789. 


748  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

the  control  over  street's  exists,  but  no  action  for  neglect  is  ex- 
pressly given;  still,  the  two  classes  of  cases  establish,  upon 
authority,  the  distinction  mentioned. 

§  786.  The  difficulty  of  satisfactorily  ascertaining  the 
grounds  of  the  difference  in  the  liability  of  the  two  classes  of 
corporations  is  avoided  in  the  New  England  states,  by  the 
course  of  adjudication  therein  on  the  subject.  It  was  decided, 
as  we  have  seen,  at  an  early  day,  that  towns1  were  not  liable 
to  such  actions  unless  the  liability  be  created  by  statute,  and 
that  view  has  been  maintained  ever  since,  and  applies,  as 
respects  defective  and  unsafe  ways,  equally  to  streets  in  cities 
and  highways  in  'towns.  It  being  established  that  there  was  no 
common  law  obligation  upon  towns  to  respond  for  neglect  of 
duty  in  respect  to  highways  and  bridges,  the  legislatures  of 
each  of  the  New  England  states  have  imposed  the  duty  upon 
towns  to  keep  their  highways  in  repair,  so  as  to  be  safe  and 
convenient  for  travelers,  and  have  given,  in  terms,  to  persons 
injured  by  neglect  to  discharge  this  duty,  an  action  against  the 
town.  The  substance  of  the  statutes  of  the  New  England  states 
in  this  respect,  and  upon  which  the  decisions  to  be  referred  to 
have  been  made,  is  given  in  the  note.2  Upon  neither  towns  nor 
cities,  in  the  view  of  the  courts  of  New  England,  is  there  any 
implied  liability  for  injuries  resulting  from  defective  streets  or 

1  Suprn,  Sees.  762,  763.  As  to  nature  of  New  England  towns:  Ante,  p.  34, 
Sec.  11. 

2  Massachusetts  statute. — By  the  Eevised Statutes,  Chap.  XXV.  Sec.  1,  "All 
highways,  townways,  causeways,  and  bridges  within  the  bounds  of  any 
town"  are  required  to  "be  kept  in  repair  at  the  expense  of  such  town,  so 
tha$  the  same  may  be  safe  and  convenient  for  travelers,  with  their  horses, 
teams,  and  carriages,  at  all  seasons  of  the  year."  By  Sec.  22,  it  is  provided 
that  "if  any  person  shall  receive  any  injury  in  his  person  or  property  by 
reason  of  any  defect  or  want  of  repair,  which  has  existed  for  the  space  of 
twenty-four  hours  in  any  highway,"  he  may  recover  compensation  therefor* 
And  the 'same  provision,  with  the  exception  of  the  limitation  of  twenty- 
four  hours,  is  re-enacted  in  the  statute  of  1850,  Chap.  V.  and,  in  substance, 
in  the  General  Statutes  of  1860,  Chap.  XLIV.  Sec.  22,  p.  247.  History  of 
legislation  traced  by  Hoar,  J. :  Stanton  v.  Springfield,  12  Allen,  566. 

Rhode  Island.— Substantially  the  same.  Construed :  Providence  v.  Clapp, 
17  How.  161. 

Vermont  statute.— The  language  of  the  Vermont  statute  is:  "If  any  special 
damage  shall  happen  to  any  person,  his  team,  carriage,  or  other  property^ 


CH.  XXIII.]   ACTIONS  FOR  TORTS. — DEFECTIVE  STREETS,  &C.  749 

sidewalks;  the  liability  is  wholly  statutory.1  An  important 
consequence  is  that  every  case  of  this  character  must  be  within 
the  statute;  and  hence  the  liability  of  the  town  or  city  does 

by  means  of  the  insufficiency  or  want  of  repair  of  any  highway  or  bridge  in 
any  town,  which  such  town  is  bound  to  repair,"  the  town  shall  be  liable). 

Connecticut  statute.—  The  Connecticut  statute,  in  substance,  is,  that  the 
several  towns  shall  make  and  keep  in"  good  and  sufficient  repair  all  the  need- 
ful highways  and  bridges,  &c,  and  if  any  person  shall  be  injured,  in  his  per- 
son or  property,  through,  or  by  means  of,  a  defect  in  the  road  or  bridge,  he 
may  recover  damages  of  the  town,  &c. 

New  Hampshire  statute.— In  New  Hampshire,  by  the  statute  of  February 
27, 1786,  it  is  provided,  "that  in  case  any  special  damage  shall  happen  to 
persons  or  their  teams  or  carriages  by  means  of  the  insufficiency  or  want  of 
repair  of  any  highway  or  bridge  in  any  town  or  parish,  the  party  aggrieved 
shall  recover  his  damage  in  an  action  against  such  town  or  parish.  And 
the  said  town  shall  have  a  remedy  over  against  the  surveyor  of  highways 
through  whose  fault  or  neglect  the  same  happened:"  Revised  Statutes,. 
Chap.  XL VII.  Sec.  1. 

Maine  statute. —  By  the  statute  in  Maine  (Revised  Statute  of  1841,  Chap.. 
XXV.),  all  highways,  &c._are  to  be  "kept  in  repair  and  amended  from  time' 
to  time,  that  the  same  may  be  safe  and  convenient  for  travelers,"  &c.;  in  de^- 
fault  thereof,  the  town  in  which  such  neglect  of  duty  occurs  |s  made  liable. 
And  any  person  receiving  "any  bodily  injury,"  or  suffering  "any  damage' 
in  his  property,  through  any  defect  or  want  of  repairs,  *  *  *  may  re- 
cover, in  a  special  action  of  the  case,  of  the  county,  town,  or  persons  who. 
are  by  law  obliged  to  repair  the  same,  the  awount  of  damages  thereby 
sustained,  if  such  county,  town,  or  person  had  reasonable  notice  of  the  defect 
or  want  of  repair." 

'  It  is  the  language  of  one  of  the  most  accomplished  judges  that  ever  sat 
upon  the  uniformly  able  supreme  judicial  bench  of  Massachusetts,  speak- 
ing of  this  subject,  that,  "The  liability  of  towns  for  defects  in  ways  is. 
wholly  the  creation  of  statutes,  and  is  a  liability  strictly  limited  and  pecu- 
liar:" Per  Hoar,  J.,  Oliver  v.  Worcester,  102  Mass.  489,  496,  1869;  Mower  v. 
Leicester,  9  Mass.  247,  1812;  Commonwealth  v.  Springfield,  7  Mass.  9, 1810;; 
Brady  v.  Lowell  (city  of),  3  Cush.  121,  124,  1849;  Bacon  v.  Boston,  3  Cush.. 
174,1849;  Brailey  v.  Southborough,  6  Cush,  141,1850;  Smith  v.  Dedham,  8; 
Cush.  522, 1851 ;  Hixon  v.  Lowell,  18  Gray,  59,  64, 1859 ;  Vinal  v.  Dorchester,. 
7  Gray,  421,  422.  "The  obligation  resting  upon  towns  in  relation  to  the 
support  of  highways  and  bridges,  is  not  imposed  by^he  common  law,  but  is- 
wholly  a  creature  of  the  statute:"  Per  Waite,  J.,  in  Chisey  v.  Canton,  17' 
Conn.  475,  478,  1846,  approving  Mower  v.  Leicester,  9  Mass.  247 ;  Reed  ».. 
Belfast,  20  Maine,  248.  So  in  New  Hampshire:  Farnum  v.  Concord,  2  N.  H.. 
392,  1821,  approved  m  Eastman  v.  Meredith,  36  N.  H.  284,  1868;  and  note' 
remarks  of  Perley,  C.  J.,  in  the  conclusion  of  his  masterly  opinion,  pp.  2X,. 
301.  So  in  Maine:  Reed  v.  Belfast,  20  Maine,  246,  248;  .Sanford  *.  Augusta,, 
32  Maine,  536;  Peck  v.  Ellsworth,  36  Maine,  393.  And  Vermont:  Baxter  v.. 
Winooki  Turnpike  Company,  22  Vt.  114, 123, 1849;  Hyde  v.  Jamaica,  27  Vt. 
443,  457, per  Bennett,  J.;  State  v.  Burlington,  36  Vt.  521,  per  Poland,  C.  J. 


750  MUNICIPAL    CORPORATIONS.  [CH.  XXIII. 

not  extend  to  persons  not  within  the  protection  of  the  statute ; 1 
and  hence,  also,  if  it  only  gives  a  right  of  action  when  the 
defect  has  existed  a  certain  length  of  time,  this  time  must  have 
elapsed  when  the  injury  happened,  in  order  to  make  it  action- 
able.2 

§  787v  The  judicial  reports  of  the  New  England  states 
abound  with  decisions,  under  these  statutes,  respecting  what  con- 
stitutes an  actionable  defect,  insufficiency,  or  want  of  repair  in 
a  street  or  highway ;  what  is  required  of  towns  in  order  to  dis- 
charge their  duty  under  the  statute  and  escape  liability;  how 
much  of  the  highway  or  street  must  be  made  safe  and  con- 
venient; what  degree  of  care  is  required  of  the  plaintiff;  what 
injuries  result  so  directly  and  immediately  from  the  defective 
or  insufficient  way,  as  to  be  within  the  statute ;  and  questions 
of-  a  like  character.  It  will  be  perceived  that  these  statutes 
are  general  in  their  language,  and,  in  substance,  impose  the 
duty  on  towns  (and  they  extend  to  cities  as  well)  to  make  their 
ways  safe  and  convenient,  and  give  an  action  for  injuries  occa- 
sioned to  the  person  or  property  of  travelers  by  reason  of  any 
defect  or  want  of  repair.  How  far  the  duty  they  impose  is  co- 
incident with  the  corresponding  duty,  which  in  other  states  is 
held  by  the  courts  to  rest  by  implication  upon  municipal  cor- 
porations, so  as  to  make  the  adjudications  in  New  England 
precisely  applicable  elsewhere,  is  a  question  respecting  which 
we  can  properly  do  little  more  than  to  }ay  before  the  reader 
data  to  enable  him  to  form  upon  it  his  own  judgment.  "We 
venture  to  remark,  however,  that  it  is  quite  probable  these 
statutes,  as  construed,  do  impose,  in  some  respects,  a  greater 
measure  of  liability  than  would  elsewhere  be  held  to  exist  by 
implication.  Many  of  the  questions,  however,  which  have 
arisen  in  actions  upon  them  are  obviously  general  in  their 
nature,  as,  for  example"  the  degree  of  care  required  of  the 
plaintiff;  what  injuries  may  justly  be  regarded  as  proximately 

1  As  the  duty,  under  the  statute  of  Massachusetts,  is  only  towards  travel- 
ers, it  does  not  extend  to  the  case  of  a  person  who  is  using  the  highway 
simply  for  the  purposes  of  play:  Blodgett  v.  Boston,  8  Allen,  237, 1864.  Same 
principle:  Stickney  v.  Salem,  3  ib.  374;  Stinson  v.  Gardiner  (city  of ),  42 
Maine,  248, 1856. 

2  Brady  v.  Lowell,  3  Cush.  121, 1849. 


OH.  XXIII.]   ACTIONS  FOR  TORTS. — DEFECTIVE  STREETS,  &.G.  751 

caused  by  the  unsafe  or  insufficient  highway;  the  evidence 
competent  in  such  actions,  and,  to  some  extent,  the  rules  to 
measure  the  recovery;  and  the  opinions  of  the  courts  of  these 
states  in  deciding  or  discussing  them  may  always  be  consulted 
with  interest,  and  often  with  advantage,  by  the  legal  or  judi- 
cial inquirer. 

§  788.  Generally  speaking,  it  may,  perhaps  correctly,  be 
said  that,  under  these  statutes,  a  town  or  city  charged  with  the 
duty  of  keeping  its  highways  or  streets  in  repair  performs  that 
duty  when  the  traveled  way  is  without  obstructions  or  struc- 
tural defects  which  endanger  the  safety  of  travelers,  and  is 
sufficiently  level  and  smooth,  guarded  by  railings  where  neces- 
sary, to  enable  persons,  by  the  exercise  of  ordinary  care,  to 
travel  with  safety  and  convenience.1 

The  decisions  respecting  actionable  defects  under  these  stat- 
utes have  been  classified  as  follows2:  — 

1.  "Want  of  railings. 

2.  Obstructions  to  the  traveled  path  by  rocks,  stones,  wood, 
timber,  posts,  snow,  ice,  &c. 

3.  Holes  or  excavations  in  the  traveled  path,  or  so  imme- 
diately contiguous  as  to  make  the  highway  itself  unsafe. 

4.  Defective  bridges  and  causeways,  insufficient  to  support 
travelers. 

5.  Awnings,  the  doctrine  in  respect  of  which  is  limited  and 
peculiar,  if  not  exceptional. 

In  a  work  general  in  its  character,  like  the  present,  it  would 
not  be  in  place  to  notice  at  length  the  cases  arising  under  these 
local  statutes.  Following  the  classification  just  mentioned,  it 
must  suffice  briefly  to  refer  to  some  of  the  more  important  of 
them  in  the  notes.  By  recurring  to  the  statutes  heretofore 
given,3  the  precise  force  and  value  of  the  decisions  upon  them 
will  be  better  apprehended,  and,  in  the  light  of  these  decisions, 

1  Hixon  v.  Lowell,  13  Gray,  59, 1859,  per  Hoar,  J.;  Barber  v.  Roxbury,  11 
Allen,  318,  1865,  per  Gray,  J. 

%  Per  Chapman,  J.,  in  Keith  v.  Easton,  2  Allen,  552,  553,  1861 ;  Barber  o. 
Roxbury,  11  Allen,  318,  320,  per  Gray,  J. ;  Sparhawk  v.  Salem,  1  Allen,  30, 
186L 

3  Supra,  Sec.  786,  note. 


752  MUNICIPAL    CORPOKATIO-NS.  [CH.  XXIII. 

the  state  of  the  law  in  this  country  upon  the  general  question 
of  the  implied  liability  of  municipal  corporations  in  respect  of  de- 
fective and  unsafe  streets  and  ways,  be  better  understood.1 

'  l  Decisions  in  the  New  England  States  bespecting  Defective  Streets 
and  Sidewalks — "Safe  and  convenient,"  duty  thus  imposed,  defined:  Eaymond 
v.  Lowell,  6  Cush.  524,  534,  1850 ;  reviewed,  Hubbard  v.  Concord,  35  N.  H. 
52,  1857 ;  Gregory  *.  Adams,  14  Gr'ay,  242,  1859,  per  Merrick,  J. ;  Hixon  v. 
Lowell,  13  Gray,  59,  1859,  per  Hoar,  J. ;  Church  v.  Cherryfield,  33  Maine, 
460,  1851 ;  Johnson  v.  Haverhill,  35  N.  H.  74, 1857,  where  the  rule  adopted 
by  the  Supreme  Court  as  the  proper  construction  of  the  statute  is  stated ; 
Hubbard  v.  Concord,  35  N.  H.  52;  Davis  v.  Bangor,  42  Maine,  522,  1856; 
Packard  v.  New  Bedford  (oblique  gutter  across  street),  9  Allen,  200  ;  Keith 
v.  Easton,  2  Allen,  552,  per  Chapman,  J.  Compare  Morse  v.  Richmond,  41 
Vt.  435,  and  note.  S.  C.  8  Am  Law  Keg.  (N.  S.)  81  ;  Leicester  v.  Pittsford, 
6  Vt.  245,  1834  ;  Prindle  v.  Fletcher,  39  Vt.  255, 1867 ;  and  Clark  v.  Corinth, 
41  Vt.  449,  1868,  cited  wit.i  approval,  by  Dixon,  C.  J.,  in  Ward  v.  Jefferson, 
24  Wis.  342,  1869. 

The  defect  in  the  highway  or  street  must  be  the  direct  and  proximate  cause 
of  the  special  damage  for  which  the.  statute  gives  an  action :  Adams  v.  Carlisle, 
21  Pick.  146  ;  Holman  v.  Townsend,  13  Met.  297,  299, 1847 ;  Horton  v.  Ips- 
wich, 12  Cush.  488, 1853 ;  Lund  v.  Tyngsboro  (leaping  from  carriage  on  near 
approach  to  defect),  11  Cush.  563, 1853 ;  Tuttle  v.  Holyoke,  6  Gray,  447, 1856; 
Sears  v.  Dennis,  105  Mass.  310, 1870  ;  Stickney  v.  Maidstone,  30  Vt.  738,  1858, 
and  cases  cited  by  Pierpont,  J. ;  Manderschid  v.  Dubuque,  29  Iowa,  73,  1870. 

Defect  causing  team  to  be  frightened :  Marble  v.  Worcester,  4  Gray,  395, 1855; 
Cook  v.  Charlestown,  98  Mass.  80,  1867.  Compare  Morse  v.  Richmond,  41 
Vt.  435.  S.  C.8  Am.  Law  Reg.  (N.S.)  81,  and  note  of  Judge  Redfield.  Flight 
of  team  by  accident,  and  injury  thereto  by  a  defect  in  the  highway :  Davis  v.  Dud- 
ley, 4  Allen,  557, 1862,  distinguished  from  Palmer  v.  Andover,  2  Cush.  600,  and 
Howard  v.  North  Bridgewater,  16  Pick.  189,  explained ;  Fogg  v.  Nahant,  98 
Mass.  578, 1868.  See  Manderschid  o.  Dubuque,  25  Iowa,  108,  disapproving 
Davis  v  Dudley,  supra.  Whether  injury  caused  jointly  by  defective  road  and.  de- 
fect in  plaintiff's  wagon,  horse,  or  harness,  is  actionable,  see  conflicting  views  in 
Vermont  and  Massachusetts  on  the  one  hand,  and  Maine  on  the  other : 
Hunt  v.  Pownal,  9  Vt.  418 ;  Rowell  v.  Lowell,  supra ;  Howard  v.  North 
Bridgewater,  16  Pick.  189 ;  Marble  v.  Worcester,  4  Gray,  395 ;  Palmer  v- 
Andover,  2  Cush.  600,  1849;  Shepherd  v.  Chelsea,  4  Allen,  113,  1862;  Moore 
v.  Abbott,  32  Maine,  46,  1850 ;  Farrar  v.  Greene,  32  ib.  574 ;  Moulton  v.  San- 
ford,  51  Maine,  127,  1862,  following  Moore  v.  Abbott,  supra,  which  is  denied 
to  be  law  in  Winship  v.  Enfield,  42  N.  H.  197,  1860;  Lacon  v.  Page,  48  111. 
499 ;  Joliet  v.  Verley,  35  111.  63. 

Want  of  railings  or  barriers.  If  rails  or  barriers  are  necessary  for  the  proper 
security  of  travelers,  the  authorities  charged  with  the  duty  of  keeping  the 
roads  in  repair  and  safe  condition  must  furnish  them :  Palmer  v.  Andover, 
2  Cush.  (Mass.)  600, 1849 ;  commented  on  in  Rowell  v.  Lowell,  7  Gray  (Mass.) 
100, 102 ;  Jones  v.  Waltham  (falling  into  cattle  guards),  4  Cush.  299,  1849' 
Liability  of  railroad  company :    Ib.  202,  per  Metcalf,  3. ;    Alger  v.  Lowell,-3. 


CH.  XXIII.]     ACTIONS  FOR  TORTS. —  DEFECTIVE  STREETS.  753 

§  789.  It  may  be  fairly  deduced  from  the  many  cases  upon 
this  subject  referred  to  in  the  notes,  that  in  the  absence  of  an 
express  statute  imposing  the  duty  and  declaring  the  liability, 

Allen  (Mass.),  402,  ib.  38 ;  Burnham  v.  Boston  (dangerous  excavation),  10 
Allen,  290, 1865 ;  Stinson  v.  Gardiner  (city  of),  42  Maine,  248,  1856 ;  Doherty 
v.  Waltham  (barriers  removed  by  stranger  in  night  time),  4  Gray,  596, 1855 ; 
Davis  v.  Hill,  41  N.  H.  329,  1860 ;  Hayden  v.  Attleborough,  7  Gray,  338, 1856 ; 
Williams  v.  Clinton  (want  of  railing  on  embanked  highway),  28  Conn.  264, 
1859 ;  Tolland  v.  Willington,  26  ib.  587.  Duty  to  close  or  bar,  by  visible 
signs,  if  unsafe:  Blaisdell  v.  Portland,  39  Maine,  113,  1855;  Loker  v.  Damon, 
17  Pick.  284;  Drary  v.  Worcester,  21  Pick.  44.  When  road  or  street  re- 
garded as  opened :  State  v.  Cornville,  43  Maine,  427, 1857 ;  Bowman  v.  Bos- 
ton, 5  Cush.  1 ;  Kellogg  v.-  Northampton,  8  Gray,  504, 1857.  Towns  not 
bound  to  fence  or  erect  barriers  to  prevent  travelers  from  getting  outside  of  the 
way  when  there  is  no  unsafe  place  immediately  contiguous  :  Sparhawk  v.. 
Salem,  1  Allen,  30,  1861 ;  Murphy  «.  Gloucester,  105  Mass.  470,  and  cases 
cited  by  Morton,  J. ;  Nebraska  City  v.  Campbell  (want  of  railing),  2  Black, 
590  ;  Chicago  v.  Gallagher,  44  111.  295,  1867. 

Obstructions  to  the  tkaveled  path.  Towns  must  remove  actionable  ob- 
structions to  the  traveled  path  or  route  hy  whomsoever  placed  there.  But  "  are 
not  liable  for  obstruction  in  portions  of  the  highway,  not  part  of  the  trav- 
eled path,  and  not  so  connected  with  it  that  they  will  affect  the  security  or 
convenience  for  travel  of  those  using  the  traveled  path : "  Smith  v.  Wen- 
dell, 7  Cush.  498,  500, 1851,  per  Dewey,  J. :  Shepardson  v.  Colerain,  13  Met. 
55;  Kellogg  v.  Northampton,  4  Gray,  65,  1855.  S.  C.  8  Gray,  504;  Howard 
v.  North  Bridgewater,  16  Pick.  189 ;  Cogswell  v.  Lexington,  4  Cush.  307  ; 
Hayden  v.  Attleborough,  7  Gray,  338,  1856.  Illustrations  of  what  are  obstruc- 
tions: A  stick  of  timber,  logs,  &e  :  Springer  v.  Bowdoinham,  7  Maine,  442, 
1831 ;  Snow  v.  Adams,  1  Cush.  443, 1848.  Stones  in  the  road-bed  of  the  trav- 
eled highway :  Bigelow  v.  Weston,  3  Pick.  267,  1825 ;  Smith  v.  Wendell,  7 
Cush.  498 ;  Kellogg  v.  Northampton,  4  Gray,  65.  Logs  by  the  side  of  trav- 
eled path:  Johnson  v.  Whitefleld,  18  Maine,  286;  Davis  v.  Bangor, 42  Maine, 
522,  527,  per  Appleton,  J. ;  Snow  v.  Adams,  1  Cush.  443, 1848.  A  post  by  the 
side  of  the  road,  within  the  general  course  of  travel:  Cogswells.  Lexington, 
4  Gush.  307.  But  see  McComber  v.  Taunton,  100  Mass.  255.  As  to  rope  ex- 
tended across  the  street  being  an  obstruction  or  defect :  French  v.  Bruns- 
wick, 21  Maine,  29  1842.  But  see  Barber  v.  Roxbury,  11  Allen,  318, 1865, 
that  it  is  not.  "  Obstructions,"  or  want  of  repairs  defined  by  BartleU,  J. :  Bay 
v.  Manchester,  46  N.  H.  59, 1865.  Loaded  wagons  standing  on  a  street  under 
care  of  a  driver  not  "a  defect  or  want  of  repair"  of  street:  Davis  v.  Bangor, 
42  Maine,  522, 1856. 

Injury  received  by  traveler  outside  of  the  road,  though  the  road  itself  was 
dangerous,  not  within  the  statute,  of  which  the  words  are,  "injury  by  reason 
of  any  defect"  in  the  highway :  Tisdale  v.  Norton,  8  Met.  388,  1844.  Nor  . 
ordinarily  actionable :  Sparhawk  v.  Salem,  1  Allen,  30, 1861.  The  doctrine  \ 
in  Massachusetts  is,  that  the  damage,  in  order  to  be  actionable,  must  be 
occasioned  by  causes  entirely  within  the  highway :  Richards  v.  Enfield,  13 
95 


754  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

municipal  corporations  proper  having  the  powers  ordinarily  con- 
ferred upon  them  respecting  bridges,  streets,  and  sidewalks 
within  their  limits,  owe  to  the  public  the  duty  to  keep  them 

Gray,  344, 346,  per  Bigelow,  J.,  citing  and  following  Rowell  v.  Lowell,  7  Gray, 
iOO,  1856.  See,  also,  Keith  v.  Easton,  2  Allen,  552, 1861 ;  Baltimore  v.  Bran- 
nan,  14  Md.  227, 1859.  Right  to  go  extra  mam:  Campbell  v.  Bace,  7  Cush. 
408,  410,  and  authorities  cited. 

Width  to  be  kept  in  repair :  Howard  v.  North  Bridgewater,  16  Pick.  189, 
1834;  recognized  in  Shepardson  v.  Colerain,  13  Met.  55,  59,  1847 ;  Bacon  v. 
Boston,  3  Cush.  174,  1849,  relating  to  width  of  sidewalk,  and  distinguished 
from  Howard  v.  Worth  Bridgewater,  supra ;  Smith  v.  Wendell,  7  Cush.  498 ; 
Kellogg  v.  North  Hampton,  4  Gray,  65,  7  Gray,  338.  Whether  wide  enough  to 
be  safe  is  for  the  jury  ;  so,  whether  it  should  be  made  safe  and  convenient  its 
whole  width :  Johnson  v.  Whitefleld,  18  Maine,  286 ;  Aldrich  v.  Pelham,  1 
Gray,  510 ;  Savage  v.  Bangor,  40  Maine,  176. 

Latent  defects;  liability  for:  Prindle  i>.  Fletcher,  39  Vt.  257,  cited  with  ap- 
proval, 24  Wis.  342,  1869. 

Sidewalks  :  Liability  of  town  or  city  for  actionable  defects  extends  to  side- 
walks, they  being  deemed  to  constitute  part  of  the  street :  Bacon  v.  Boston 
(a  deep  opening  made  by  adjoining  owner  for  cellar  window),  3  Cush.  174, 
1849 ;  Lowell  v.  Spaulding,  4  Cush.  275  ;  lb.  277 ;  Kirby  v.  Market  Associa- 
tion, 14  Gray,  249, 1859  ;  Manchester  v.  Hartford,  30  Conn.  118,  1861 ;  Hub- 
bard v.  Concord,  35  N.  H.  52,  1857,  reviewing  Raymond  v.  Lowell,  6  Cush. 
524,  and  denning  measure  of  duty,  as  respects  sidewalks.  Duty  as  respects 
crossings ;  foot  passengers,  where  to  cross :  Raymond  v.  Lowell,  6  Cush. 
524, 1850 ;  Brady  v,.  Lowell,  3  ib.  121,  1849.  Right  of  foot  travelers  to  travel 
along  and.  across  street :  Ib. ;  Coombs  v.  Purrington,  42  Maine,  332,  1856 ; 
Bacon  v.  Boston,  3  Cush.  174 ;  Baker  v.  Savage,  45  N.  Y.  191,  1871.  What 
inequalities  in  surface  actionable:  Raymond  v.  Lowell,  6  Cush.  524;  Hub- 
bard v.  Concord,  35  N.  H.  52  ;  Smith  v.  Wendell,  7  Cush.  498  ;  Winn  v, 
Lowell,  1  Allen,  177 ;  Lacon  v.  Page,  48  111.  499. 

Snow  and  ice.  Under  statute  requiring  highways  to  be  made  "  safe  and 
convenient  at  all  seasons,"  &c.  it  is  held  that  towns  and  cities  are  liable  for 
defects  and  obstructions  caused  by  snow  and  ice  rendering,  them  unsafe,  the 
later  decisions  tending  to  restrict  the  liability :  Loker  v.  Brookline,  13  Pick. 
343,  1832 ;  Hort,on  v.  Ipswich,  12  Cush.  488,  1853  ;  Hall  *.  Lowell  (injury 
upon  sidewalk  covered  with  ice),  10  Cush.  260,  262, 1852,  remarks  of  Metcalf, 
J. ;  Stanton  v.  Springfield  (doctrine  carefully  stated  by  Hoar,  J.),  12  Allen, 
566, 1866 ;  Shea  v.  Lowell,  8  Ailen,  136 ;  lb.  137 ;  O'Neill  v.  Lowell,  6  Allen, 
110, 1863 ;  Street  v.  Holyoke,  105  Mass.  82,  1870,  and  cases  cited  by  Colt,  J. ; 
Stone  v.  Hubbardston  (when  ice  a  defect),  100  Mass.  49,  57, 1868,  and  cases 
cited  by  Gray,  J. ;  Gilbert  v.  Roxbury,  i,6. 185 ;  Landolt  v.  Norwich  (Superior 
Court  of  Connecticut),  6,  Am.  Law  Reg.  (N.  S,),  383,  1872 ;  Providence  v. 
Clapp,  17  How.  (U.  S.)  161, 1854,  construing  statute  of  Rhode  Island,  which 
is  substantially  the  same  as  that  of  Massachusetts ;  Green  v.  Danby,  12  Vt. 
338, 1840 ;  Barton  v.  Montpelier,  30  Vt.  650, 1858 ;  Tripp  v.  Lyman  (defect 
occasioned  by  freezing  and  thawing) >  37  Maine,  250, 1854  ;    Savage ,v.  Bangor, 


CH.  XXIII.]     ACTIONS  FOR  TORTS. — DEFECTIVE  STREETS,  755 

in  a  safe  condition  for  use  in  the  usual  mode  by  travelers,  and 

are  liable  in  a  civil  action  for  special  injuries  resulting  from 

i 
40  Maine,  176, 1855 ;  Hubbard  v.  Concord  (descending  sidewalk  icy  and 
slippery),  35  N.  H.  52 ;  ib.  74 ;  Hall  v.  Manchester,  40  N.  H.  410, 1860.  As  to 
liability  elsewhere :  Cook  v.  Milwaukee,  24  "Wis.  270, 1869 ;  Ward  v.  Jefferson, 
24  Wis.  342, 1869,  construing  statute  of  Wisconsin ;  Baltimore  v.  Mariott,  9 
Md.  160, 1856 ;  Achison  v.  King,  Supreme  Court  of  Kansas,  nbt  yet  reported. 

The  owner  or  occupant  of  the  building  is  not  liable  in  such  cases  to  the  person 
injured  on  the  sidewalk  in  front  from  natural  accumulations  of  snow  and  ice : 
Kirby  v.  Market  Association,  14  Gray,  249,  1859.  Owner  liable  for  injury 
caused  by  snow  and  ice  falling  from  the  roof:  Shepley  v.  Fifty  Associates, 
101  Mass.  251. 

Awnings  and  palling  substances  :  The  statute  of  Massachusetts,  before 
cited  (ante,  Sec.  786,  note),  is  held  to  extend  to  injuries  caused  by  defective 
awnings  projected  over  the  sidewalk,  and  where  the  defect  or  want  of  repair 
in  the  projection  is  of  a  nature  to  render  its  continuance  dangerous  to  the 
public  safety :  Drake  v.  Lowell,  13  Met.  292, 1847 ;  Day  v.  Milford,  5  Allen, 
98.  The  question  is  close,  and  is  admitted  to  reach  the  utmost  limit  of 
corporate  liability,  and  the  liability  is  regarded  as  exceptional.  Per  Chap- 
man, J.,  in  Keith  v.  Easton,  2  Allen,  552, 1861 ;  Barber  v.  Roxbury,  11  ib.  318. 
And  it  was  held  in  Hixoii  v.  Lowell,  13  Gray,  59, 1859',  that  a  city  was  not 
liable  where  the  only  defect  in  the  street  is  the  projection  from  the  roof  of  a 
building  not  owned  by  the  city  of  a  mass  of  ice  and  mow  which  had  grad- 
ually accumulated  there  until  it  overhung  the  traveled  way  and  rendered 
the  passing  beneath  dangerous.  Nor  is  a  city  liable  for  injury  sustained 
by  a  traveler  on  a  sidewalk  by  the  falling  on  him  of  a  sign  suspended  over  the 
sidewalk  by  the  adjoining  proprietor,  and  insecurely  fastened,  although  the 
city  had  notice  of  the  position  and  unsafe  condition  of  the  sign :  Jones  v. 
Boston,  104  Mass.  75, 1870.  Nor  by  the  falling  of  an  iron  weight  attached  to 
a  flag  which  was  suspended  across  the  street  by  third  persons :  Huvisoh  v. 
New  Haven,  36  Conn.  136.  Both  of  the  cases  last  cited  follow  Hixon  v. 
Lowell,  13  Gray,  59,  in  preference  to  Drake  v.  Lowell,  13  Met.  292,  and  state' 
the  distinction  which,  in  Hixon  v.  Lowell,  the  court  thought  it  easier  to 
feel  than  express :  6  Am.  Law  Be  v.  556.  But  is  it  easy  either' to  feel  or 
express  the  distinction  ?  And  does  not  the  difficulty  come  from  holding 
that  the  statute  embraced  a  case  like  Drake  v.  Lowell.?  See  Jones  v.  New 
Haven  (falling  of  dead  limb  from  tree  in  public  square),  34  Conn.  1, 1867. 
Owner,  and  not  tenant,  responsible  for  safety  of  awning,  and  if  the  town  is; 
held  liable,  it  may  recover  over  from  the  owner :  Milford  V.  Holbrook,  9 
Allen,  17, 1864 ;  Lowell  v.  Short,  4  Cush.  275 ;  lb.  277.    Infra,  Sec.  795. 

Dangerous  holes  or  excavations  in  or  near  traveled  way :  Cobb  v.  Standish 
(miry  watering  place  by  the  roadside),  14  Maine,  198, 1837;  Keed  v.  North- 
field  (hole  in  the  road),  13  Pick.  94, 1832 ;  Norwich  v.  Breed,  30  Conn.  535, 
1862 ;  Murphy  v.  Gloucester,  105  Mass.  470, 1870 ;  Ghenn  v.  Provincetown. 
Ib.  313. 

Defective  bridges  and  causeways  are  actionabte.  .Degree  of  strength  re- 
quired :  criterion  of  sufficiency  :  Richardson  v.  Turnpike  Company,  6  Vt. 
496, 1834  ;  Gregory  v.  Adams,  14  Gray,  242,  where  an  elephant  was  injured 
by  a  bridge  giving  way. 


756  MUNICIPAL    COEPOEATIONS.  [CH.  XXIII. 

neglect  to  perform  this  duty.1  Such  a  duty  and  liability  are 
considered  to  exist,  without  a  positive  statute,  when  the  fol- 
lowing conditions  concur;  1.  The^acein  question,  whether 
bridge,  sidewalk,  or  street,  must  be  one  which  it  is  the  duty 
of  the  corporation  to  repair  or  keep  in  a  safe  condition ;  and  this 
duty  (to  keep  in  repair),  if  not  specifically  enjoined,  must  arise 
upon  a  just  construction  of  the  charter  or  statutes  applicable 
to  the  corporation.  2.  This  duty  or  burden  must  appear  upon 
a  fair  view  of  the  charter  or  statutes  to  be  imposed,  or  rest 
upon  the  municipal  corporation,  as  such,  and  not  upon  it  as  an 
agency  of  the  state,  or  upon  its  officers  as  independent  public 
officers.  (This,  however,  in  general,  appears  sufficiently  where 
the  municipality  sought  to  be  made  liable  exists  under  a 
special  charter  or  general  act  which  confers  upon  it  peculiar 
powers  and  privileges  as  respects  streets,  their  control  and  im- 
provement, not  possessed  throughout  the  state  at  large  under 
its  general  enactments  concerning  ways.)  3.  The  power  to  per- 
form the  duty  of  maintaining  the  streets  in  a  safe  condition,  by 
authority  to  levy  taxes  or  impose  local  assessments  for  the 
purpose,  must  be  (as  it  almost  always  is)  conferred  upon  the 
corporation.2 

1  Enforcing  this  duty  by  mandamus :  See,  ante,  Sec.  673.  By  indictment: 
Ante,  Sees.  745-748. 

s  Weightman  v.  Washington,  1  Black  (U.  S.),  39, 1861  (corporate  liability 
for  unsafe  bridge) ;  distinguished  from  Providence  v.  Clapp,  17  How.  (U. 
S.)  161 ;  and  from  Russell  v.  Men  of  Devon,  2  Term  R.  667 ;  and  approving, 
Henley  v.  Mayor,  &c.  of  Lyme,  5  Bing.  91;  S.  C.  3  Barn.  &  Adolph.  77;  S.C. 
2  CI.  &  Fin.  331.  Weightman  v.  Washington,  above  cited,  was  followed  by 
Nebraska  City  v.  Campbell,  2  Black,  590,  1862,  where  a  city  corporation, 
with  control  over  streets,  and  power  to  levy  taxes  to  keep  them  in  repair, 
left  a  bridge  on  a  street  over  a  creek  defective  and  unsafe  for  wmt  of 
side  railing,  was  held  liable  for  damages  happening  in  consequence.  See, 
also,  Chicago  v.  Bobbins,  2  Black,  418,  1862;  S.  C.  again,  4  Wall.  657, 1866; 
Mayor  v.  Sheffield  (stump  in  sidewalk),  4  Wall.  189,  1866;  Hutson  v.  Mayor 
of  New  York,  9  N.  Y.  (5  Seld.)  163,  1853.  Mason,  J.,  admits  existence  of 
cases  of  contrary  bearing  where  the  means  to  keep  in  repair  are  limited, 
but  regards  them  as  not  applicable,  since  the  city  of  New  York  "  is  pos- 
sessed of  the  most  ample  powers  in  this  respect:  "  lb.  170.  See  Same  Case, 
5  Sandf.  Sup.  Ct.  R.  289,  and  exposition  of  the  ground  on  which  it  was  de- 
cided by  Denio,  J.,  9  N.  Y.  (5  Seld.)  456,  458,  in  Griffin  v.  Mayor,  &c.  of  New 
York.  And  see,  also,  Lloyd  v.  Mayor,  &c.  of  New  York,  5  N.  Y.  (1  Seld.) 
369, 1851;  Mayor,  &c.  of  New  York  v.  Furze,  3  Hill,  612, 1842;  approved  by 
Selden,  J.,  16  N.  Y.  162,  note;  5  Seld.  168;  lb.  458;    explained,  1  Denio,  595; 


CH.  XXIII.]     ACTIONS  FOR  TOKTS. —  DEFECTIVE  STREETS.  757 

Where  the  duty  to  keep  streets  in  repair  is,  in  terms,  en- 
joined upon  the  corporate  authorities,  and  they  are  supplied 
with  the  means  to  perform  it,  there  is  little  difficulty,  we  think, 
in  holding  the  corporation  liable,  on  the  general  principles 
of  the  law,  without  an  express  statute  declaring  the  liability 
to  a  civil  action  by  any  one  specially  injured  by  its  neglect  to 

32  N.  Y.  165;  Conrad  v.  Ithaca,  16  N.  Y.  158,  1857;  Weet  v.  Brockport,  ib. 
161,  and  review  of  cases  in  the  learned  opinion  of  Selden,  J.;  Storrsv.  Utica, 
17  N.  Y  104,  and  cases  cited ;  Davenport  v.  Ruckman,  37  N.  Y.  568,  1868, 
in  which  Hunt,  C.  J.,  declares  that  the  liability  of  the  corporation  of  the 
city  of  New  York  extends  to  injuries  arising  from  the  omission  of  the  duty  to 
repair,  as  well  as  to  those  arising  from  some  act  done  by  it :  Requa  v.  Roch- 
ester, 45  N.  Y.  129,  1871 ;  Erie  v.  Schwingle,  22  Pa.  St.  384,  1853.  Wilful 
neglect  not  essential  to  liability ;  and  as  to  defence  of  want  of  funds,  and 
want  of  means  to  raise  them,  see  remarks  of  Black,  C.  J.;  Ib.  384,  389  As 
to  bridges,  see  ante,  Sees.  579,  580,  and  index  —  Bridge.  Blake  v.  St.  Louis, 
40  Mo.  569;  Smith  v.  St.  Joseph,  45  Mo.  449;  St.  Paul  v.  Kirby  (injury  to 
child),  8  Minn.  154  ;  St  Paul  v.  Seitz,  3  ib.  297 ;  Topeka  v.  Tuttle,  5  Kansas, 
425;  Atchison  v.  King,  Sup.  Ct.  of  Kansas,  not  yet  reported;  State  v.  Mayor, 
&c.  11  Humph.  (Tenn.)  217, 1850,  per  McKinney,  J. ;  Smoot  v.  Wetumpka,  24 
Ala.  112, 1854;  Browning  «.  Springfield,  17  111143,1855;  Joliet  v.  Verley, 
35  111.  58;  Bloomington  v.  Bay,  42  111.  503;  Chicago  v.' Gallagher,  44  111.  295 ; 
Chicago  v  Johnson,  53  111.  91 ;  Decatur  v.  Fisher,  ib.  407 ;  Rusch  ».  Daven- 
port (defective  bridge),  6  Iowa,  443,  1858;  Rowell  v.  Williams,  29  ib.  210, 
1870;  Ellis  v.  Iowa  City,  ib.  229;  Ib.  73;  Soper  «.  Henry  County,  26  ib.  264, 
1868;  McCullom  v.  County,  21  ib.  409;  Pease  v.  Dayton  (defective  bridge), 
4  Ohio  St.  80, 1854 ;  Tallahassee  v.  Fortune,  3  Flor.  19,  1850;  Baltimore  v. 
Mariott  (ice  on  pavement),  9  Md.  174;  Baltimore  v.  Pennington,  15  Md.  12, 
1859;  Baltimore  v.  Brannan  (accident  in  a  place  not  public),  14  Md.  227, 
1859. 

The  principles  stated  in  the  text  find  no  little  support  in  the  general 
reasons  on  which  the  judgments  in  several  important  recent  cases  in  Eng- 
land rest:  Foreman  o.  Canterbury,  Law  R.  6  Q.  B.  214,  1871;  Mersey  Dock 
Cases,  Law  R.  1  H.  L.  93;  S.  C  11  House  of  Lords  Cases,  686, 1866.  Contra. 
In  New  Jersey  the  view  is  taken  that  the  duty  of  a  city  in  respect  to  the 
repair  of  its  streets  is  a  public  duty  (not  a  corporate  one),  and  that  the  neg- 
lect to  perform  it  will  not  give  a  private  remedy  without  an  express  statute : 
Pray  »  Jersey  City,  32  N.  J.  394, 1868 ;  reaffirming,  Freeholders  v.  Strader 
{quad  corporation),  3  Harr.  (N.  J.)  108,  1840.  See,  also,  Detroit  v.  Blakeby, 
21  Mich.  84;  S.  C.  9  Am.  Law  Reg.  (N.  S.)  670,  with  note.  In  Maryland  the 
other  extreme  is  held,  and  counties  are  liable  without  an  express  statute  to  a 
private  action  in  respect  of  defective  roads,  on  the  ground  that  a  public 
duty  is  enjoined  with  the  means  of  performance,  and  that  the  public  have 
a  remedy  for  neglect  by  indictment  and  a  party  specially  injured  by  action: 
County  Commissioners  v.  Duckett,  20  Md.  468,  1863.  See  Brown  v.  Jeffer- 
son County,  16  Iowa,  339,  assuming  liability  of  counties  for  defective  bridges. 
But  see  Soper  v.  Henry  County,  26  Iowa,  264,  for  discussion  of  question. 


758  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

discharge  this  specific  duty.  But  where  the  duty  to  repair  is 
not  specifically  enjoined,  and  an  action  for  damages,  caused  by 
defective  streets,  is  not  expressly  given,  still,  both  the  duty  and 
the  liability,  if  there  be  nothing  in  the  charter  or  legislation 
of  the  state  to  negative  the  inference,  has  often,  and,  in  our 
judgment,  properly,  been  deduced  from  special  powers  con- 
ferred upon  the  corporation  to  open,  grade,  improve,  and  ex- 
clusively control  public  streets  within  their  limits,  and  from  the 
means  which,  by  taxation  and  local  assessments,  or  both,  the 
law  places  at  its  disposal  to  enable  it  to  perform  this  duty. 

The  municipal  corporation  is  not  an  insurer  against  acci- 
dents upon  the  streets  and  sidewalks.  Nor  is  every  defect 
therein,  though  it  may  cause  the  injury  sued  for,  actionable. 
It  is  sufficient  if  the  streets  (which  include  sidewalks  and 
bridges  thereon)  are  in  a  reasonably  safe  condition  for  travel 
in  the  ordinary  modes,  by  night  as  well  as  by  day,  and  whether 
they  are  so  or  not  is  a  practical  question  to  be  determined  in 
each  case  by  its  particular  circumstances.1  The  ground  of  the 
action  is  either  "positive  misfeasance  on  the  part  of  the  corpo- 
ration, its  officers,  or  servants,  or  by  others  under  its  authori- 
ity,  in  doing  acts  which  cause  the  street  to  be  out  of  repair,  in 
which  case  no  other  notice  to  the  corporation  of  the  condition 
of  the  street  is  essential  to  its  liability ;  or  the  ground  of  the 
action  is  the  neglect  of  the  corporation  to  put  the  streets  in  re- 
pair, or  to  remove  obstructions  therefrom,  or  to  remedy  causes 
of  danger  occasioned  by  the  wrongful  acts  of  others,  in  which 
cases  notice  of  the  condition  of  the  street,  or  what  is  equivalent 
to  notice,  is  necessary,  as  will  presently  be  stated,  to  give  to 
the  person  injured  a  right  of  action  against  the  corporation, 
unless,  indeed,  the  matter  be  otherwise  regulated  by  statute.2 

1  Blake  v.  St.  Louis,  40  Mo.  566,  571,  per  Wagner,  J. ;  Seward  v.  Milford,  21 
Wis.  485;  Land olt ».  Norwich,  6  Am.  Law  Reg.  (N.  S.)  383;  Leicester  v. 
Pittsford,  6  Vt.  245;  Raymond  v.  Lowell,  6  Cush.  524,534;  Davenports. 
Ruckman,  37  N.  Y.  568, 1868;  Johnson  v.  Haverhill,  35  N.  H.  74;  Ghenn  v. 
Provincetown,  105  Mass.  313,  1870;  Williams  v.  Clinton,  28  Conn.  264;  Ba- 
con v.  Boston,  3  Cush.  174;  Manderschid  v.  Dubuque,  29  Iowa,  73, 1870. 

2  As  to  degree  of  care  required  of  the  plaintiff :  Fallen  v.  Boston,  3  Allen,  38; 
Gilman  v.  Deerfield,  15  Gray,  577;  Griffin  v.  Mayor,  9  N.  Y.  456;  4  Comst. 
349;  5  Denio,  255,  and  cases  cited  ;  Cobb  v.  Standish  (woman  driving);  14 
Maine,   198;    Combs  v.  Purrington  (walking  in  carriageway),  42  ib.  332; 


CH.  XXIII.]     ACTIONS  K)R  TORTS. —  DEFECTIVE  STREETS.  759 

It  is  also  essential  to  liability  that  the  plaintiff  should  have 
been  using  reasonable  or  ordinary  care  to  avoid  the  accident, 
or,  in  other  words,  he  must  be  free  of  any  such  fault  or  neg- 
lect on  his  part,  as  will  in  actions  for  negligence  defeat  a  re- 
covery. The  case  would  be  exceptional  indeed  when  the 
plaintiff  could  .properly  recover  vindictive,  or  more  than  actual 
or  compensatory  damages. 

§  790.  Where  streets  have  been  rendered  unsafe  by  the  direct 
act,  order,  or  authority  of  the  municipal  corporation  (not  acting 
through  independent  contractors,  the  effect  of  which  will  be 
considered  presently),  no  question  has  ever  been  made,  or  can 
reasonably  exist,  as  to  the  liability  of  the  corporation  for  in- 
juries thus  produced,  where  the  person  suffering  them  is  with- 
out fault,  or  was  using  due  care.1     Where  the  duty  to  keep 

Davenport  v.  Rucfeman,  37  N.  Y.  568;  Beatty  v.  Gilmore,  16  Pa.  St.  463; 
Seward  v.  Milford,  21  Wis.  485;  Weisenberg  v.  Appleton,  26  Wis.  56 ;  Mur- 
phy v.  Dean,  101  Mass.  455, 1869 ;  Norris  v.  Litchfield,  35  N.  H.  271 ;  Ib.  530 ; 
Winn  v.  Lowell  (plaintiff  with  poor  sight),  1  Allen,  177;  Lynch  v.  Smith 
(injury  to  child),  104  Mass.  52;  Hyde  v.  Jamaica,  27  Vt.  443.  Infra,  Sec.  790. 
Plaintiff's  knowledge  of  defect  —  Effect  of:  President,  &c.  v.  Dusouchett,  2 
Ind.  587;  Farnum  v.  Concord,  2  N.  H.  392;  Reed  v.  Northfield,  13  Pick.  94; 
Mahoney  v.  Metropolitan  Railroad  Company,  104  Mass.  73 ;  Humphreys  v. 
County,  56  Pa.  St.  204,  1869. 

Onus  in  respect  to  proving  due  care  on  part  of  plaintiff  is  upon  him :  Law 
v.  Crombie,  12  Pick.  176;  Moore  v.  Abbott,  32  Maine,  46;  16.  574;  Murdock 
v.  Warwick,  4  Gray,  178,  and  cases;  Ib.  395,  397,  per  Shaw,  C.  J.;  Rowell  v. 
Lowell,  7  Gray,  100;  Rusch  v.  Davenport,  6  Iowa,  443,  1858.  Contra,  Beatty 
v.  Gilmore,  16  Pa.  St.  463,  1851,  where  the  subject  is  carefully  considered; 
Erie  City  v.  Schwingle,  22  ib.  384. 

Effect  of  plaintiff's  violation  of  ordinances  on  his  right  of  recovery :  Baker 
».  Portland,  58  Maine,  99;  10  Am.  Law  Reg.  (N.  S.)  559,  and  note  of  Judge 
Redfield;  denying,  Heland  v.  Lowell,  3  Allen,  104, 1862. 
Effect  of  intoxication  of  plaintiff:  Alger  v.  Lowell,  3  Allen,  402. 
Measure  of  damages—  What  jury  may  consider:  Chicago  v.  Langlass,  52 
111.  256, 1869,  and  Decatur  v.  Fishery  53  111.  407,  1870,  denying-right  of  jury 
to  give  exemplary  damages;  McGary  v.  Lafayette,  12  Rob.  (La.)  668;  S.  C. 
ib.  674;  76.4  La.  An.  440;  Chicago  v.  Martin,  49  111.  241;  Atchison  v.  King, 
Sup.  Ct.  Kansas,  MS.  1872,  not  yet  reported;  Raymond  v.  Lowell,  6  Cush. 
524,537,1850;  Beecher  v.  Bridge  Company,  24  Conn.  491 ;  Masters  v.  War- 
ren, 27  *.  293,  1858;  Reed  v.  Belfast,  20  Maine,  246;  Nebraska  City  v.  Camp- 
bell, 2  Black  (U.  S.),  590,  1862. 

1  Detroit  v.  Corey  (sewer  excavation),  9  Mich.  165, 1861 ;  Lloyd  v.  Mayor, 
&c.  (dangerous  excavation)  1  Seld.  369, 1851;  Weet  v.  Brockport,  16  N.  Y. 


760  MUNICIPAL    CORPORATIONS.  [CH.  XXIII. 

its  streets  in  safe  condition  rests  upon  the  corporation,  it  is  lia- 
ble for  injuries  caused  by  its  neglect  or  omission  to  keep  the 
streets  in  repair,1  as  well  as  for  those  caused  by  defects  occa- 
sioned by  the  v;rongful  acts  of  others;2  but,  as  in  such  case  the 

161,  note ;  Chicago  v.  Major  (uncovered  city  cistern  in  street),  18  111.  349 ; 
approved,  but  distinguished,  Chicago  v.  Starr,  42  111.  174,  1866,  where  the 
city  was  held  not  liable  for  an  injury  caused  by  the  fall  of  a  counter,  lean- 
ing against  a  fence,  on  a  sidewalk;  Dayton  v.  Pease,  4  Ohio  St.  80,  1854,  in 
which  the  city  was  held  liable  for  damages  caused  by  the  fall  of  a  bridge 
built  upon  a  defective  plan,  furnished  by  the  city  engineer;  Cincinnati  v. 
Stone,  5  Ohio  St,  38,  1855;  Conrad  v.  Ithaca,  16  N.  Y.  158;  Wendell  v.  Troy, 
39  Barb.  329, 1862;  Mayor  v.  Sheffield,  4  Wall.  189, 1866;  Grant  v.  Brooklyn 
(act  of  a  city  water  commissioner  in  opening  a  sewer),  41  Barb.  381,  1864; 
Baltimore  v.  Pennington,  15  Md.  12,  1859.    Infra,  Sec.  791. 

1  Hutson  v.  Mayor,  &e.  of  New  York,  9  N.  Y.  163,\1853;  Hickok  «.  Platts- 
burg,  16  N.  Y.  161 ;  Davenport  v.  Buckman,  37  N.  Y.  568,  1868 ;  Blooming- 
ton  v.  Bay,  42  111.  503,  1867 ;  Atchison  v.  King,  Supreme  Court  of  Kansas, 
1872  (not  yet  reported).  Supra,  Sec.  789.  Contra:  Detroit  v.  Blakeby,  21 
Mich.  84 ;   S.  C.  with  note  of  Judge  Redfield,  9  Am.  Law  Beg.  <N.  S.)  670. 

"  Ante,  Sec.  788,  and  note  on  page  753;  Hickok  v.  Plattsburg,  16  N.  Y.  161, 
note  (negligent  omission  to  fill  up  ditch  which  a  wrongdoer  had  excavated  in 
the  street);  Wendell  v.  Troy,  39  Barb.  329;  Eequa  v.  Rochester,  45  N.  Y. 
129, 1871 ;  Serrot  v.  Omaha  City,  1  Dillon,  C.  C.  R.  312, 1871 ;  Griffin  v.  Mayor, 
&c.  9  N.  Y.  (5  Seld.)  456,  1853;  Tallahassee  v.  Fortune,  3  Fla.  19,  1850. 

Liability  for  injuries  received  on  street  by  the  fall  of  an  unsafe  wall:  In  Georgia, 
a  city  corporation  with  the  usual  power  to  keep  streets  in  repair  and  to  re- 
move buildings  and  obstructions  thereon,  was  considered  to  have  the 
power,  which  it  was  bound  to  exercise,  to  remove  any  nuisance  which  ren- 
dered the  use  of  the  street  dangerous,  such  as  a  deep  pit  dug  near  the  side- 
walk, or  an  unsafe  wall  adjoining  it,  and  it  was  held  to  be  liable  to  a  person 
injured  by  the  fall  of  a  high  brick  wall  of  a  burnt  house,  on  private  proper- 
ty, at  the  line  of  the  sidewalk,  if  it  was  negligent  in  the  discharge  of  its 
duty  to  have  the  wall  abated  or  made  secure.  The  court  admitted^  that 
if  the  wall  was  firm  and  had  been  thrown  down  by  a  tempest,  there 
would  be  no  liability:  Parker  v.  Macon,  39  Ga.  725,  1869.  But,  in  Lou- 
isiana, a  precisely  opposite  conclusion,  as  to  the  liability  of  a  city  cor- 
poration for  the  falling  of  an  unsafe  wall,  was  reached  in  Howe  v.  New 
Orleans,  12  La.-An.  481, 1857.  In  Jones  v.  New  Haven,  34  Conn.  1,  1867,  it 
was  held  that  a  city  with  power  to  protect  and  regulate  trees  in  the  squares 
and  streets,  and  which  had  by  ordinance  prohibited  any  interference  by 
others  with  such  trees,  was  liable  for  an  injury  caused  by  the  falling  of  a  dead 
limb  which  the  city  had  negligently  allowed  to  remain  upon  a  tree  in  the 
public  square.  The  decision,  however,  is  rested  by  the  court  upon  general 
principles,  and  not  upon  the  duty  to  keep  streets  and  ways  in  repair:  Jones 
v.  New  Haven,  34  Conn.  1, 167.  Supra,  Sec.  780,  Sec.  788,  and  note  on  page 
755  (awnings).  See  observation  of  Hoar,  J.,  in  Hixon  v.  Lowell,  13  Gray, 
p.  63. 


QH.  .XXIII.]     ACTIONS  FOR  TORTS  .-y- DEFECTIVE  STREETS.  761 

basis  of  the  action  is  negligence,  notice  to  the  corporation  of 
the;  defect. which; caused  the  injury,  or  facts  from  which  notice 
thereof  may  reasonably  be  inferred,  or  proof  of  circumstances 
from  which  it  appears  that  the  defect  ought  to  have  been 
known  and  remedied  by  it,  is  essential  to  liability;  for  in  such 
cases  the  corporation,  in  the  absence  of  a  controlling  enact- 
ment, is  responsible  only  for  reasonable  diligence  to  repair  the 
defect  or  prevent  accidents  after  the  unsafe  condition  of  the 
street  is  known,  or  ought  to  have  been  known,  to  it,  or  to  its 
officers  having  authority  to  act  respecting  it.1 

§  791.  "Whether  the  duty  of  maintaining  the  streets  in  a  safe 
condition  for  public  travel  and  use,  is  specially  imposed  on 
the  corporation,  or  is  deduced,  in  the  manner  before' slated,'  it 
rests  primarily,  as  respects  the  public,  upon  the  corporation,  and  the 
obligation  to  discharge  this  duty  cannot  be  evaded,  suspended, 
Or  cast  upon  others,  by  any  act  of  its  own.  Therefore,  according 
to  the  better  view,  where  a  dangerous  excavation  is  made  and  neg- 
ligently left  open  (without  proper  lights,  guards,  or  covering),  in 
a  traveled  street  or  sidewalk,  by  a  contractor  under  the  corpora- 
tion for  building  a  sewer  or  other  improvement,  the  corporation 
is  liable  to  a  person  injured  thereby,  although  it  may  have  had 
no  immediate  control  over  the  workmen  and  had  even  stipu- 

'  Dewey  v.  Detroit,  15  Mich.  307, 1867,  where  the  duty  of  street  commis- 
sioners and  the  rule  as  to  notiqe  are  clearly  stated  by  Campbell,  J. ;  Mayor 
v.  Sheffield,  4  Wall.  189,- 1866 ;  McGinity  v.  Mayor,  &c.  of  New  York,  5  Duer, 
674 ;  Griffin  v.  Mayor,  &c.  of  New  York,  9  N.  Y.  456, 1853 ;  Requa  v.  Roches- 
ter, 45  NY.  129,  1871;  Serrot  v.  Omaha  City,  1  Dillon,  C.  C.  R.  312,  1871; 
Dorlon  v.  Brooklyn,  46  Barb.  504. 

As  to  necessity  of  notice  to  city,  or  the  lapse  of  sufficient  time  to  acquire  knowl- 
edge, of  the  unsafe  condition  of  the  street,  see,  also,  Ward  v.  Jefferson,  24  Wis. 
2;  Hubbard  v.  Concord,  35  N.  H.  52;  ib.  74;  Reed  v.  Northfleld,  13  Pick. 
94;  Worster  v.  Canal  Company,  16  Pick.  541;  Hart  v.  Brooklyn,  36  Barb. 
226 ;  Weightman  v.  Washington,  1  Black,  .39, 62,  per  Clifford,  3. ;  Manchester 
S.Hartford,  30  Conn.  118;  Howes.  Lowell,.  101  Mass,  99;  Bloomington  v. 
Bay,  42  HI.  503,  509,  1867;  Vandyke  v.  Cincinnati,  1  Disney  (Ohio),  .532. 
Infra,  Sec.  795.  The  House  of  Lords,  upon  great  consideration,  have  re- 
cently held  that  having  the  means  of  knowledge,  and  negligently  remaining 
ignorant,  is  equivalent  in  creating  a  liability  to  actual  knowledge:  Mersey  Docks 
v.  Gibbs,  11  H.  L.  Casl  687,  701 ;  S.  C.  Law  Rep. 1  H.  L.  93, 1866 ;  Weisen- 
berg  v.  Appleton,  26  Wis.  56, 1870.  Notice  not  necessary  when  city  is  in 
fault:' Springfield  s.Le  Claire,  49111.476,  1866;  Bartons.  Syracuse,  36  N. 
Y.  54,  58,  per  Bockes,  J. 
96 


762  MUNICIPAL  CORPORATIONS.  [CH.  XXIII. 

lated  in  the  contract  that  proper  precautions  should  be  taken 
by  the  contractor  for  the  protection  of  the  public,  and  making 
him  liable  for  accidents  occasioned  by  his  neglect.1  It  is  im- 
material, as  respects  the  primary  liability  of  the  corporation  in 
such  a  case,  whether  it  has  or  has  not  inserted  such  a  clause  in 
agreement  with  the  contractor.  If,  however,  it  has  taken 
the  precaution  to  obtain  from  the  contractor  an  express  stipu- 
lation of  this  character,  this  will  give  it,  on  being  held  liable 
(however  it  might  otherwise  be),  a  remedy  over  against  him.2 

1  Storrs  v.  Utica  (sewer  excaxation),  17  N.  Y.  104,  1858,  per  Comstock,  J. ; 
Detroit  v.  Corey  (sewer  excavation),  9  Mich.  165, 1861,  where  the  same  prin- 
ciple was  applied,  and  the  result  of  Storrs  v.  Utica  concurred  in,  although 
the  city  was  bound  to  let  the  contract  to  the  lowest  hidder;  Campbell,  J., 
dissenting,  on  the  ground,  mainly,  that  the  city,  being  required  to  let  to  the 
lowest  bidder,  could  not  itself  have  built  the  sewer,  and  the  relation  of 
principal  and  agent  did  not  exist  between  the  city  and  the  contractor — the 
majority  holding  that  such  relation  did  exist,  and  that  the  contractor  had, 
and  could  have,  no  right  to  make  the  excavation,  except  as  the  agent  of  the 
city.  In  an  early  case  in  California  (James  v.  San  Francisco,  6  Cal.  528, 
1856),  it  was  held  that  there  was  no  corporate  liability  where  the  city  was 
obliged  to  let  the  contract  to  the  lowest  bidder.  See,  also,  Springfield y.  Le 
Claire,  49  111.  476,  1866,  following  Storrs  v.  Utica,  and  disapproving  Painter 
v.  Pittsburg,  46  Pa.  St.  221,  cited  infra;  S.  C.  3  Am.  Law  Reg.  (N,  S.)  350, 
with  useful  note  by  Mr.  (now  Judge)  Mitchell ;  Chicago  v.  Robbins,  2  Black, 
418;  S.  C.  2  Am.  Law  Reg.  (N.  S.)  529,  assumes  the  same  principle;  Blake 
v.  St.  Louis,  40  Mo.  569,  1867,  which  overrules,  probably,  Barry  v.  St.  Louis, 
17  Mo.  121, 1852,  cited  infra;  St.  Paul  v.  Seitz,  3  Minn.  297,  308,  1869,  per 
Flandrau,  J.;  Baltimore  v.  Pennington,  15  Md.  12,  1859.  Compare  West- 
chester v.  Apple,  35  Pa.  St.  284,  1860,  which,  in  its  result  and  reasoning,  is 
against  the  general  doctrine  of  the  courts  elsewhere,  and  rests  upon  the 
questionable  basis  that  a  city  corporation  has  the  right  to  disregard  its  duty 
•  to  the  public  to  keep  its  streets  in  a  safe  condition.  Painter  v.  Pittsburg, 
supra,  is  against  the  principle  stated  in  the  text,  but,  as  pointed  out  by  Mr. 
Mitchell  in  his  note,  the  ground  upon  which  the  doctrine  of  the  text  rests 
"was  apparently  not  urged  in  the  argument,  and  is  not  noticed  by  the 
court."  Barry  v.  St.  Louis,  17  Mo.  121, 1852,  referred  to  above.  The  latest 
New  York  case  there  cited  is  the  case  of  Bailey,  2  Denio,  433, 1845,  and  the 
proposition  that  the  city  is  primarily  liable  for  the  defective  or  dangerous 
condition  of  its  streets,  and  should  not  be  allowed,  in  executing  a  work 
attended  with  danger,  to  shift  this  responsibility  by  contract,  does  not  ap- 
pear to  have  been  presented  to  the  court. 

3  Buffalo  v.  Holloway,  7  N.  Y.  (3  Seld.)  493, 1852,  affirming  S.  C.  14  Barb. 
101.  It  is  here  held  that  as  between  the  corporation  and  contractor,  there 
is  no  implied  agreement  to  protect  the  public ;  but  is  this  right  ?  See  Storra 
v.  Utica,  17  N.  Y.  104,  1858;  Blake  v.  Ferris,  1  Seld.  (N.  Y.)  48;  Myers  v. 
Snyder,  Brightley  (Pa.),  489;  Beatty  v.  Gilmore,  16  Pa.  St.  (4  Harris)  463, 
1851. 


CH.  XXIII.]     ACTIONS  FOR  TORTS. —  DEFECTIVE  STREETS.  763 

And  so,  on  the  same  principle,  namely,  that  the  duty  to  keep 
the  streets  and  sidewalks  in  a  safe  condition  rests  upon  the 
corporation  and  cannot  be  surrendered  or  abdicated,  it  is  lia- 
ble for  injuries  caused  by  open  excavations  made  therein,  with 
its  knowledge  or  consent,  express  or  implied,  by  the  adjoining 
lot  owner  for  the  purpose  of  an  area  or  to  obtain  light  and  air 
for  the  basement  or  cellar;  but  in  such  cases  the  corporation 
has,  without  any  express  contract,  if  not  itself  in  fault,  a  rem- 
edy over  against  the  owner  of  the  lot  or  building  for  whose 
benefit  the  excavation  was  made.1 

§  792.  There  has  been  much  controversy  as  to  the  liability 
of  a  municipal  corporation  for  the  negligence  or  wrongful  acts  of 
contractors  under  it  in  the  execution  of  the  work  agreed  to  be 
performed.  Ordinarily,  no  person  other  than  the  one  imme- 
diately or  actually  guilty  of  the  wrongful  act  is  liable  therefor, 
except  upon  the  ground  that  the  relation  of  principal  or  agent, 
or  master  and  servant,  existed  between  the  person  or  corpora- 
tion sought  to  be  made  liable,  and  the  person  who  did  the  act, 
or  was  guilty  of  the  negligence  that  caused  the  injury.  In 
other  words,  the  principle  of  respondeat  superior  does  not  extend 
to  cases  of  independent  contracts,  where  the  party  for  whom 
the  work  is  to  be  done  is  not  the  immediate  superior  of  those 
guilty  of  the  wrongful  act,  and  has  no  choice  in  the  selection 
of  workmen,  and  no  control  over  manner  of  doing  the  work 
under  the  contract     Such  is  the  general  rule;*  but  it  is  im- 

1  Chicago  v.  Bobbins,  2  Black,  418;  S.  C.  4  Wall.  657;  2  Am.  Law  Reg. 
(N.  S.)  529,  1862,  distinguishing  Hilliard  ».  Richardson,  3  Gray,  349,  and 
overruling  Scammon  v.  Chicago,  25  111.  424,  on  this  point;  Rowell,».  Wil- 
liams (excavation  for  cellar),  29  Iowa,  210,  1870,  following  and  approving 
Chicago  v,  Robbins ;  Wendell  v.  Troy,  39  Barb.  329. 

i  Blake  v.  Ferris,  1  Seld.  48, 1851 ;  Storrs  v.  TJtiea  17  N.-  Y.  104, 1858,  and 
note  well  grounded  doubts  of  Comstock,  J.,  respecting  the  correctness  of  the 
application  of  the  doctrine,  so  well  stated  in  Judge  MuUett's  opinion  in 
Blake's  Case,  to  the  dangerous  work  of  excavating  a  deep  hole  in  a  public 
street;  Pack  v.  Mayor,  &c. '(injury  by  blasting)  8  N.  Y.  222, 1853;  and  see 
similar  case  of  Kelly  v.  Mayor,  &c.  11  N.  Y.  432,  both  approved  in  Storrs  v. 
Utica,  but  distinguished ;  Cincinnati  v.  Stone,  5  Ohio  St.  38, 1855;  Hilliard 
v.  Richardson,  3  Gray,  349,  "and  which  contains,"  says  Mr.  Justice  Davis  (in 
Chicago  v.  Robbins,  2  Black,  418),  "  a  most  elaborate  and  able  discussion  of 
the  doctrine  of  respondeat  superior,"  with  a  full  review  of  the  authorities. 


764  MUNKTPAL   CORPORATIONS.  [CH.  XXIII; 

portant  to  bear  in  mind  that  it  does  not  apply  where  the  con1- 
tract  directly  requires  the  'performance  of  a  work  iriMnsicaUy 
dangerous^  however  skillfully  performed.  In  such  a  case*,  the 
party  authorizing  the  work  is  justly  regarded  as  the  author  of 
th'e:  mischief  resulting*  from it,  whether  he  does  the  work  him- 
self or  lets .  it  out  by  contract. '  -~\ 

§  793.  Accordingly,  the  later  and  better  oonsidere&.cases 
in  this  country  respecting  streets  have  firmly,  and,  in  our 
judgment,  reasonably,  established,  the  doctrine,  that  where  the 
work  contracted  for  necessarily  constitutes  an  obstruction  or  defect  in 
the  street  of  such  a  nature  as  to  render  it  unsafe  or  dangerous 
for  the  purposes  of  public  travel,  unless  properly  guarded  or 
protectedj  the  employer  (equally  with:  the  contractor),  where 
the  injury  results  directly  from  the  acts  whiehthe  contractor 
engaged  to  perform,  is  liable  therefor  to  the  injured  party.  ^ 
But  the  employer  is  not. liable  where  the  obstruction  or  defect 
in  the  street  causing  the  injury  is  wholly  collateral  to  the  con- 
tract work,  and  entirely. the;  result  of  the  negligence  or  wrong- 
ful acts  of  the  contractor  or- his  servants.  In  such  a  case  the 
immediate  author  of  the  injury  is  alone  liable.2: 

_.  §,  -794-  No  person,  not  even  the  adjoining  owner,  whether 
tlj.e,/ee,pf,  the.  street  he  in. himself. or  in  thepublic,  has  the  right 
tp  do  any  act  which  .renders  the  use  of  the  street  hazardous  or 
less  secure  thanr  it  was  left  by  the  municipal  authorities. 
Whoever  does  so,  whether  by  excavations  made  in  the  sidewalk 

1  Storrs  v. Utica,  17  N>;Y.- 104,  1858,;.  Lockwood  ».  Mayor,  &c,  2  HjHon 
(N.  Y.),  66, 1858;  Springfield  v.  LeClaire,  49  111.  476, 1866. .  . Infra,  Sec.  79?, 
and  cases  cited.  m 

2  Bobbins  v.  Chicago;  4  Wall.  657,  679, 1866,  and  cases  cited,  per  Clifford, 
J.,  whose,  statement  of  the  principle  is  substantially  adopted  in  the,  text.' 
See,,  also,  on  prior  appeal,  2  Black,  418,  where  Seammons.  Chicago,  25  111. 
424,  is  on  one  point  disapproved ;  Storrs  v.  Utica,  17  1ST.  Y.  io4, 1858 ;  approv- 
ing but  distinguishing,  Pack  «,  Mayor,  &c.  (injury  by  blasting)  8  $f.  Y  232; 
Kelly  v.  Mayor,  &c.  ((like  rcase)  ll_N.  Y.  432.  See,  also, .  Cincinnati  v.  Stone, 
SOhioSt.  38;,-1855;  Goudier  v.  Cormack,  2  E.  D.Smith  (N.Y.),  254;  De- 
troit*. Corey,  9  Mich.'  165,  1861;  concurring  in  result  of  Storrs  v.  Utica; 
Springfield  v;  LeGlaire,  49  111.  476, 1866;  compare,  Clark  v.  Fry,  8  Ohio  St. 
358,1858.  '  ■■  .... 


OH.  XXIII.]     ACTIONS. IOR  TORTS. — DEFECTIVE  STREETS.  765 

by  the  abutter,1  or  by  unsafe  hatchways  left  therein,2  or  by 
opening,  or  leaving  open,  an  area-way  in  the  pavement,3  or  by 
undermining  the  street  or  sidewalk,  or  by  placing  unauthorized 
obstructions  thereon,  which  make  the  use  of  the  street  unsafe 
or  less  secure,*  is  guilty  of  a  nuisance,  and  is  liable  to  any  per- 
son who,  using  due  care,  sustains  any  special  injury  therefrom; 
and  in  such  cases,  the  person  who  created  or  continues  the  , 
nuisance,  is  thus  liable,  irrespective  of  the  question  of  negli- 
gence on  his  part.8  In  accordance  with  these  principles,  the 
owner  of  a  building  and  lot  is  liable  for  personal  injuries'  sus- 
tained by  the  breaking  of  a  flag-stone,  or  defective  grating 
forming  part  of  the  sidewalk  adjoining  the  building  and  cover- 
ing an  excavation  made  without  authority,  and  used  by  the 
owner  for  private  purposes.6  Ii  follows  that  it  is  no  answer  to 
such  an  action,  that  the  work,  including  the  defective  covering, 
was  done  for  the  owner  at  a  fixed  price  by  contractors,  who 
agreed  to  do  it  properly.     The  doctrine  of  respondeat  superior 

■  l  Bush  v.  Johnston,  23  Pa.  St.  209, 1854;  Chicago  v.  Bobbins;  2  Black,  418; 
S.  C.  4  Wall.  657, 1866;  Rowell  v.  Williams,  29  Iowa,  210, 1870;  following, 
Chicago  v.  Robbins,*upm;  Pfau  v.  Reynolds,  53  111.  212.  Ante,  Sec.  521,  and 
note,  p.  505.  / 

, ',  geverin  v,  Eddy,  52  111,  189,  1869. 

5  Beatty  ».  Gilmore,  16  Pa.  St.  463, 1851;  Durante. Palmer, 5  Dutch. (N.J.) 
544,1862.    Ante,  Sees.  553, -554. 

4  Congreve  v.  Smith,  18  N.  Y.  79,  1858 ;  Congreve  v.  Morgan,  18  N.  Y.  84 ; 
Harlow  «.  Humister,  6  Cow.  (N.  Y.)  189, 1826;  Wood  v.  Mears,  12  Ind.  515, 
1859 ;  Ball  v.  Armstrong  (building  material  in  gutter),  10  ib.  181 ;  Howe  '*. 
New  Orleans  (unsafe  burnt  wall),  12  La.  An.  481, 1857 ;  Parker  v.  Mason 
(unsafe  wall),  39  Geo.  725, 1869. 

6  Congreve  v.  Smith,'  18  N.  Y.  79,  1858;  Congreve  v.  Morgan,  18  N.  Y.  84; 
following,  on  this  point,  Dygert  v.  Schenck,23  Wend,  446,  and  distinguished 
from  Daniel  v.  Potter,  4  C-  &  P-  262,  which  involved  "no  question  of  liabili- 
ty for  a  consequential  injury  from  a  direct  invasion  of  the  street,  or  wrong- 
ful act:"  Per  Strong,  J.,  18  N.  Y.  86.  See,  also,  Irwin  v.  Fowler  (coal  scuttle 
in  sidewalk),, 5  Bob;  (N.  Y.)  482:  Note,  on  this  point,  the  guarded  language 
of  Mr.  Justice  Davis,  obiter,  in  Chicago  c.  Bobbins,  2  Black  (TJ.  S.),  418, 1862. 

6  Congreve  v.  Smith,  18  N.  Y.  79, 1858;  Congreve  v.  Morgan,  18  N.  Y.  84; 
Dygert  v.  Schenck,  23  Wend.  446.  Even  if  there  be  authority  from  the  city 
corporation  to  make  the  excavation,  this  implies  "  that  it  is  to  be  done  with 
proper  precautions  toprevent  accidents  to  travelers,"  and  such  a  work  is 
lawful  only  Bo  long  as  it  is  safe:  Bobbins  v.  Chicago,  4  Wall.  657,  679^er 
Clifford,  Jr.  S.  P.  in  S.  C.  2  Black,  418. 


766  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

has  no  application  to  such  a  case.  And  because  the  owner  is 
bound,  at  his  peril,  to  keep  the  excavation  covered  so  as  to  be 
as  safe  as  if  it  had  not  been  made,  he  is  not  discharged  from 
liability  by  the  fact  that,  having  provided  a  sufficient  covering, 
it  was,  without  his  knowledge,  fractured  or  rendered  unsafe 
by  the  wrongful  acts  of  others.1 

§  795.  The  ultimate  liability,  however,  in  such  cases,  is 
upon  the  author  or  continuer  of  the  nuisance;  but  if  the  party 
injured  elects  to  proceed  against  the  municipal  corporation 
for  failing  in  its  duty  to  keep  the  streets  and  sidewalks  in  a 
safe  condition  for  public  travel,  and  there  is  no  statute  dispens- 
ing with  notice  as  a  condition  of  liability,  he  must  show  notice 
to  the  corporation  of  the  obstruction  or  defect,  or  at  least;  neg- 
lect of  duty  in  not  ascertaining  it.2  If  the  person  injured  fail 
in  his  action  against  the  municipality,  this  is  no  bar  to  an 

1  Congreve  v.  Morgan,  18  N.  Y.  84, 1858. 

The  owner  of  a  building  is  not  liable  for  defects  in  sidewalk  occasioned 
by  natural  causes,  as  by  accumulations  of  ice  and  snow  thereon :  Kirby  v. 
Market  Association,  14  Gray,  249 ;  supra,  Sec.  788,  and  note  on  p.  754. 

Defects  in  ways  caused  by  railroad  companies :  Infra,  Sec.  796. 

2  Supra,  Sec.  790 ;  McGinity  v.  Mayor,  &c.  of  New  York,  5  Duer,  674, 1856; 
Griffin  v.  Mayor,  &c.  of  New  York,  9  N.  Y.  (5  Seld.)  456  ;  Portland  v.  Rich- 
ardson, 54  Maine,  46, 1866 ;  Veazie  v.  Railroad  Company,  49  ib.  119;  Chicago 
v.  Robbins,  2  Black  (U.  S.),  418,  1862.  S.  C.  4  Wall.  657,  1866;  Durante 
Palmer,  5  Dutch.  (N.  J.)  544, 1862.  No  liability  by  owner  of  land  if  in  the 
use  of  his  land  he  places  logs  outside  of  the  legal  highway,  but  within 
the  road  as  fenced :    Harlow  v.  Humiston,  6  Cow.  189,  1826. 

Liability  for  act  of  agent  or  servant:  Harlow  v.  Humiston,  6  Cow.  189, 1826; 
Samyn  v.  McCloskey,  2  Ohio  St.  536, 1853. 

Liability  as  between  owner  and  tenant:    Durant  v.  Palmer,  5  Dutch.  (N.  J.) 
544,  1862  ;    Milford  t>.  Holbrook,  9  Allen,  17 ;    Lowell  v.  Spaulding,  4  Cush.~ 
277,  1849 ;    Lowell  v.  Short,  ib.  275 ;    Kirby  v.  Market  Association,  34  Gray, 
249, 1859 ;  Stephani  v.  Brown,  40  111.  428,  1866.    Supra,  Sec.  788,  note,  p.  755. 

Liability  of  author  of  a  dangerous  and  unguarded  excavation  on  his  own 
land  near  a  frequented  sidewalk  or  street :  Norwich  v.  Breed,  30  Conn.  535, 
1862.  Compare  Howland  v.  Vincent,  10  Met.  371 ;  Hardcastle  v.  Railroad 
Company,  4  Hurlst.  &  Norm.  67 ;  Hounsel  v.  Smyth,  7  Com.  B.  (N.  S.)  729 ; 
Manderschid  v.  Dubuque,  29  Iowa,  73, 1870.  Ante,  Sec.  780.  Parker  v.  Ma- 
son (unsafe  wall),  39  Ga.  725, 1869  ;  Howe  v.  New  Orleans  (unsafe  wall),  12' 
La.  An.  481 ;  Rowell  v.  Williams,  29  Iowa,  210.  No  liability  against  the 
owner  for  maintaining  an  area  cover  in  a  highway  where  this  existed  at 
the  time  of  the  dedication  of  the  highway  to  the  public:  Fisher  v.  Prowse,  110 
Eng.  Com.  Law.  770,  and  cases  reviewed  by  Blackburn,  J.    Ante,  p.  755,  note. 


CH.  XXIII.  J     ACTIONS  FOR  TORTS.— DEFECTIVE  STREETS.  767 

action  by  him  against  the  author  of  the  nuisance.1  If  a  mu- 
nicipal corporation  be  held  liable  for  damages  sustained  in 
consequence  of  the  unsafe  condition  of  the  sidewalks  or  streets, 
it  has  a  remedy  over  against  the  person  by  whose  act  or  con- 
duct the  sidewalk  or  street  was  rendered  unsafe,  unless  the 
'corporation  was  itself  a  wrong-doer,  as  between  itself  and  the 
author  of  the  nuisance ; 2  and  if  the  latter  had  notice  of  the  pend- 
ency of  the^action  against  the  municipality,  and  could  have  defended 
it,  he  has  been  held  to  be  concluded  as  to  the  existence  of  the 
the  defect  or  nuisance  in  the  street,  and  as  to  the  liability  of 
the  corporation  to  the  plaintiff  in  consequence  thereof,  and  as 
to  the  amount  of  damage  or  injury  it  occasioned.3  But  although 
duly  notified  he  is  not,  says  the  Supreme  Court  of  the  United 
States,  "  estopped  from  showing  that  he  was  under  no  obliga- 
tion to  keep  the  street  in  a  safe  condition,  and  that  it  was  not 
through  his  fault  that  tbe  accident  happened."4 

§  796.  Towns  and  cities  in  the  New  England  States  are 
obliged,  as  we  have  seen,  by  statute,  to  keep  their  highways 
and  streets  in  repair ; 5  and  railroad  companies  in  the  same  states 
have  frequently  been  authorized  by  law  to  construct  their  roads 
over  public  highways  and  streets,  the  effect  of  which  may  be  to 
cause  the  latter  to  be  out  of  repair.  Under  these  circum- 
stances, the  question  arises  if  a  person  suffers  damage  by  rea- 
son of  a  defective  highway  or  street  thus  occasioned,  who  is 
responsible — the  railroad  company  which  caused  the  defect, 

1  Severin  v.  Eddy,  52  III.  189, 1869. 

2  Chicago  v.  Bobbins,  4  "Wall.  657, 1866.  S.  C.  2  Black,  418 ;  Portland  v. 
Richardson,  54  Maine,  46,  1866,  and  cases  cited;  Milford  v.  Holbrook,  9 
Allen,  17. 

'  Boston  v.  Worthington,  10  Gray,  496,  1859 ;  Milford  v,  Holbrook,  9 
Allen,  17 ;  Portland  v.  Richardson,  54  Maine,  46, 1866 ;  Veazie  v.  Railroad 
Company,  49  ib.  119. 

*  Chicago  v.  Robbins,  2  Black  (U.  S.),  418, 1862,  per  Davis,  J.  S.  C.  4  Wall. 
657, 1866,  in  both  of  which  it  is  held  that  it  is  not  necessary  that  the  notice 
should  have  been  express  or  formal.  Effect  of  record  in  former  action : 
King  v.  Chase,  15  N.  H.  1 ;  Littleton  v.  Richardson,  34  N.  H.  179, 187, 1856, 
and  cases  cited,  and  where  the  subject  is  fully  examined ;  Boston  v.  "Worth- 
ington, 10  Gray,  496;  "Westjchester  v.  Apple,  35  Pa.  St.  584;  Portland  v. 
Richardson,  54  Maine,  46, 1866. 

5  Ante,  Sees.  786-788. 


768  MUNICIPAL  CORPORATIONS.  ....    [CH.  XXIJI. 

or  the  town  or  city  which  is  charged  with  the  general  duty  of 
maintaining  and  keeping  in  repair  the  public  ways?  The 
course  of  decision  in  the  New  England  States  is  to  hold  the 
town  or  city  ■primarily  responsible  to  the  person  sustaining  the 
injury,  thus  compelling  it,  when  held  liable,  to  seek  indemnity 
from  the  railroad  company.1  In  such  a  case,  the  railroad  com-* 
pany  is  liable  to  the  town  or  city  for  its  neglect,;  or  that  of  its 
workmen,  and  for  the  neglect  of  the  workmen  of,  a  contractor 
who  had  agreed  to  construct  the  railroad  for  a  stipulated  sum. 
But  the  town  or  city  can  only  recover  of  the  railroad  company 
single  damages,  although  it  had  to  pay  double  damages;  nor 
can  it  recover  from  the  railroad  company  the  costs,  and  expenses 
of  the  action  brought  by  the  traveler  against  it,  unless  the 
action  was  defended  at  the  request  of  the  railroad  company, 
or  for  its  benefit.2 

§  797.  In  this  connection  may  be  considered  the  liability 
of  municipal  corporations  for  injuries,  to  private  property  in  conse- 
quence of  being  overflowed  with  water  caused  by  improvements 

1  Phillips  v.  Veazie,  40  Maine,  96,  1855;  Currier  v.  Lowell,  16  Pick^  17, 
1834,  cited  infra;  Elliott  v.  Concord,  7  Poster,  204,' 1853;  Batty  v.  Duxbury, 
24  Vt.  155,  1852 ;  Willard  v.  Newbury,  22  Vt.  458, 1850 ;  Barber  v.  Essex,  27 
Vt.  62 ;  Eoxbury  v.  Railroad  Company,  6  Cush.  430 ;  Redfield  on  Railways, 
391.  State  t.  Gorham,  37  Maine,  451,  holds  the  same  doctrine  as  to  bridges. 
See  further,  on  this  subject :  Ante,  Sees.  560,  561,  and  note  on  p.  538 ;  also, 
Sec.  747,  note  on  p.  699 ;  Kittredge  v.  Milwaukee,  26  Wis.  46.  As  to  liability 
for  defects  at  the  crossing:  Davis  v.  Leominster,  1  Allen,  182. 

The  traveler  may,  of  course,  elect  to  proceed  at  once  against  the  railroad 
company  if  he  chooses:  Lowell  v.  Railroad  Company,  23  Pick.  24,  31; 
Eliott  v.  Concord,  7  Fost.  (N.  H.)  204,  1853,  construing  statute.  See,  also, 
Willard  v.  Newbury,  22  Vt.  458 ;  Batty  v.  Duxbury,  24  Vt.  155. 

In  Massachusetts  a  town  is  not  responsible  for  injuries  sustained  by  a 
traveler  on  a  highway  by  the  running  of  the  cars  of  a  railroad  company 
across  Vie  highway :  Vinal  v.  Dorchester,  7  Gray,  421,  1866.  The  case  of 
Currier  v.  Lowell,  16  Pick.  170,  carries  the  liability  of  towns  to  its  extreme 
limits :  lb.  per  Shaw,  C.  J.  Nor  by  reason  of  a  telegraph  post  erected  by  au- 
thority of  the  law  within  the  limits  of  the  highway :  Young  v.  Yarmouth, 
9  Gray,  386, 1857.    Ante,  Sec.  552. 

2  Lowell  v.  Railroad  company,  23  Pick.  24, 1839,  growing  out  of  Currier  v. 
Lowell,  16  Pick.  170, 1839.  S.  P.  Lowell  v.  Short,  4  Cush.  275, 1849  ;  Same 
v.  Spaulding,  ti>.  277 ;  Willard  v.  Newbury,  22  Vt.  458.  See,  on  this  subject, 
Rex  v.  Inhabitants  of  St.  George,  &c.  3  Campb.  222, 1812 ;  King  v.  Liverpool, 
3  East,  86, 1802 ;  Littleton  v.  Richardson,  34  N.  H.  179, 1856.  Remedy  over 
against  author  of  nuisance.    Ante,  Sees.  794,  795. 


CH.  XXIII.]    ACTIONS  FOR  TORTS. —  INJURIES  BY  WATER.  769 

made,  or  work  done,  upon  the  streets,  under  their  authority. 
And  here  it  is  important  to  distinguish  between  natural  streams 
flowing  in  channels  between  defined  and  actual  banks,  and 
surface  water,  caused  by  rain  or  melting  snow,  for  the  law  re- 
lating to  them  is  very  different,  and  the  powers  of  the  munici- 
pality much  greater  with  respect  to  the  latter  than  the  former.1 
Assuming  the  stream  to  be  of  the  former  character,  and  that 
the  municipality  is  without  any  valid  legislative  powers  chang- 
ing what  would  otherwise  be  the  legal  rights  of  the  parties,  its 
authorities  under  the  general  power  to  grade  and  improve 
streets,  or  construct  public  improvements  beneficial  to  it,  cannot 
deprive  others  of  their  property  rights  in  the  water-course,  or 
injure  them  by  badly  constructed  and  insufficient  culverts  or 
passage  ways  obstructing  the  free  flow  of  the  water,  without 
being  liable  therefor.3 

1  3  Kent  Com.  439,  440;  2  Washb.  Real  Prop.  64  pi.  40 ;  1  West.  Jur.  12, 
Article  on  "  Surface  Waters."  See  Boss  v.  St.  Charles,  Supreme  Court  of 
Missouri,  1872,  not  yet  reported,  as  to  "living"  and  "permanent"  stream. 
Flagg  v.  Worcester,  13  Gray,  601, 607, 1859,  and  cases  there  cited  by  Merrick, 
J. ;  Goodale  v.  Tuttle,  29,  N.  Y.  459, 1864 ;  Briscoe  v.-  Drought,  11  Ir.  C.  L.  R. 
250;  Wood  v.  Waud,  3  Exch.  (W.  H.  &  G.)  748. 

1  Baron  v.  Baltimore,  2  Am.  Jur.  203,  approved  in  Stetson  v.  Faxon,  19 
Pick.  147, 158,  1837,  and  see,  also,  Thayer  v.  Boston,  ib.  510 ;  Gardner  «. 
Newburgh  (diverting  water-course),  2  Johns.  Ch.  162,  1816.  Ante,  Sec.  97, 
note.    Supra,  Sec.  780. 

Insufficient  or  defective  water-ways  or  culverts :  Haynes  v.  Burlington,  38  Vt. 
350, 1865;  Wheeler  v.  Worcester,  10  Allen,  591, 1865,  where  Colt,  J.,  states 
carefully  some  of  the  duties  of  a  municipal  corporation  in  bridging  a  water- 
course :  Parker  v.  Lowell,  11  Gray,  353, 1858 ;.  Perry  v.  Worcester  (action 
of  tort  for  back  water),  6  Gray,  544, 1856 ;  Sprague  v.  Wbrcester  13  Gray, 
193, 1859,  same  bridge  as  in  case  last  cited ;  Lawrence  v.  Fairhaven,  5  Gray, 
110;  Talbot  v.  Whipple,  7  Gray,  122 ;  Rochester  Lead  Company  v.  Roches- 
ter (poorly  constructed  culvert),  3  Comst.  463, 1850,  explained  by  Denio,  C. 
J.,  in  Mills  v.  Brooklyn,  32  N.  Y.  489, 1865.  S.  C.  5  Am.  Law  Reg.  (N.  S.) 
33  and  note ;  Ross  «,  Madison  (insufficient  culvert),  1  Ind.  281, 1848.  S.  C. 
3  ib.  236, 1851 ;  Dayton  v.  Pease,  4  Ohio  St.  80, 1854 ;  Mayor  v.  Randolph,  4 
Watts  &  Serg.  514 ;  Ross  v.  St.  Charles  (back  water),  supra.  Good  faith  and 
honest  exercise  of  judgment  are  no  defence  in  an  action  for  damages 
caused  by  inadequate  artificial  water-way :  Perry  v.  Worcester,  supra.  Lia- 
bility does  not  extend  to  extraordinary  freshets :  Sprague  v.  Worcester, 
supra.  Except  such  as,  looking  at  the  history  of  the  stream  in  this  respect, 
may  be  "reasonably  expected  occasionally  to  occur."  Per  Chancellor  Wal- 
worth :  Mayor,  &c.  «.  Bailey,  2  Denio,  433,  followed  by  Madison  v.  Ross,  3 
Ind.  236,11851. 
97 


770  MUNICIPAL  CORPORATIONS.  [CH.  XXIII. 

§  .798.  As  to  surface  water,  quite,  different  principles  apply. 
This  the  law  ,very  largely  regards  (as  Lord  Tenterden  phrases 
it)  as  a  common  enemy,  which  every  proprietor  may  fight  or 
get  rid  of  as  best  he  may.  The  reports  contain  many  instances 
in  which  it  has  been  sought  <  to  make  municipal  corporations  lia- 
ble for  damages  caused,  in  various  ways,  by  surface  water  j  to 
private  property.  Reference  will  first  be  made  to  cases  in 
which  the,  work  of  grading  or  improving  the  streets  has  been 
the  canse  of  the  injury.  Where  the  damage  has  resulted 
solely  as  a  consequence  of  the  proper  execution  of  a  legal  power 
by;  the  corporation,  it  falls "  within  the  principle  already  men- 
tioned,1 and  there  is.no  implied,  liability  therefor.  Authority 
to  establish  grades  for  streets,  and  to  graduate  them  according- 
ly, involves  the  right  to  make  changes  in  the  surface  of  the 
ground,  which  may  affect  injuriously  the  adjacent  property 
owners ;  but  where  the  power  is  not  exceeded  there  is  no  liabil- 
ity, unless  created  by  statute,  and  then  only  in  the  mode  and 
"to  the  extent  provided;  for  the  consequences  resulting  frorn^  its 
being  exercised  and  properly  carried,  into  execution.  On  the 
.Qne.hand,  the  owner  of  property  may  take  such  measures  as 
he  deems  expedient  to  keep  surface  water' off  from  him  or  turn 
it  away  from <' his  premises;  on  to  the  street;  and,  on  the  other 
hand,  the  municipal  authorities  may  exercise  their  powers  in 
respec't  to  the  graduation,  improvement  and  repair  of  streets 
without  being,  liable  for  the  consequential  damages  caused  by 
surface  water  to  adjacent  property. 

§  799.  '  It  is.  clear  that  there  is  nb' liability  on  the  part  of  a 
municipal  corporation  for  not  exercising'  powers  it  may  popaeajs 
to,  improve  streets,  and,  as  part  of  such  improvement,  to  con- 
struct gutters  or  provide  other  means  of  drainage  for  surface 
waters  so  a3  to  prevent  them  from  flowing  upon  the  adjoining 
lots.2    And  even  when  the  work  of  graduating  the  .streets  has 

1  Ante,  Sees.  781,  782,  783.    ,Po«<,  Sec.  802. 

a'  Wilson v.  Mayor,;  &c.  of  New  York,  1  Denio,  595, 1845,  cited  infra, Sec. 
806;  Mills  v.  Brooklyn,  32  N.  Y.  489, 1865;  Flagg  v.  Worcester,  13  Gray,  601, 
1859;  Roll  v.  Augusta,  34  Geo.  326, 1866;  Carr  v.  Northern  Liberties,  35  Pa. 
St.  324, 1860;  City  Councils  Gilmer,  33  Ala.  116,  1858;  S.  C.  26  ifi.  665; 
Atchison  v.  Challiss,  9  or  10  Kansas,  not  yet  reported  —overruling  Leaven- 
worth v.  Casey,  McCahon  (Kansas),  124  ;  Bennett  v.  New  Orleans  (omission 
to  repair  draining  machine),  14  La.  An.  120, 1859;  supra,  See.  753..' 


CH.  XXIII.]    ACTIONS  FOR  TORTS. — INJURIES  BY  WATER;  771 

been  entered  upon,  there  is  not.  ordinarily,  if  ever,  any  liabili- 
ty to  the  adjoining  owner  arising  merely  from  the  nonaction 
of  the  corporation  in  not  providing  means  for  keeping  surface 
waters  from  property  situate  below  the  established  grade  of 
the  street.1  There  are^  indeed,  cases  which  go  further,  and 
assert  that  there  is  no  such  liability  where,  in  making  improve- 
ments upon  streets  or  elsewherej  authorized  by  law,  surface 
waters  are  purposely  turned  from  one's  own  land  to  that  of 
another  —  from  the  street  directly  upon  the  adjacent  property 
owner.2  We  agree  to  the  doctrine  that  the  municipal  author- 
ities are  not  bound  to  protect  from  siirface  water  those  who 
may  be  so  unfortunate  as  to  own  property1  below  the  level  of 
the  street;  nor  is  the  duty  a  perfect  one  to  adopt  a  system  or 
mode  of  drainage  which  will  have  this  effect;  and  if  one  be 
adopted,  there  is  no  liability  except  as  to  ministerial  duties  in 
connection  therewith  It  is  possible  there  may  be  ho  middle 
ground,  but  we  are  unable  to  assent  tothe  doctrine,  that  by 
reason  of  their  control  over  streets,  and  the  power  to  grade 
and.  improve  them,  the  corporate  authorities  h^ve  the  legal 
right  intentionally  to  divert  the  water  therefrom  as  a  mode  of 
protecting  the  streets,  and  discharging  it,  by  artificial  means,  in 
increased  quantities,  and  with  collected  force  and  destructive- 
ness,  upon  the  property,  perhaps  improved  ahd  occupied,  of 
the  adjoining  owner.3  v   .,,  ...... 

'iSame. authorities;  supra,  Sees.  753,  783.,  ;  .  ,i;     .; 

2  Turner  v.  Dartmouth,  13  Allen,  '201,  ,1866;  Greeley  *.  Railroad  Compa* 
ny, '53 'Maine,  200, 1865;  Dickinson  ■».' Worcester,  7  Allen,  19, 1863;  Gannon 
e.'liargadpnj  iO'Allen,  106;  .Flagg  v.  Worcester,  13  Gray,  601;  Franklin  v. 
Fisk,  13  Allen,  211 ;  Barry  v. '  Lowell,  8  Allen,  127 ; "Parks  v.  ft ewburypqrt,  10 
Gray,  28;  Bangor  v.  Lansil,  5i  Maine,' '52i',  1863;  compare,  Brine  v.  Railway 
Company,  110  Eng.  Com:  Law,  402,  1862;  Pennoyer  v.  Detroit,  8  Mich.  534, 
i860;  Pettigrew  v.  Evansville,  25  Wis.  223,  1870;  Lambar  v.  St.  Louis,'  15 
Mo.  610, 1852;  Adams  v.  Walker,  34  Conn. !  466,  1867 ;  Commissioners  v. 
Wood,  10  Pa.  St.  93, 1848;  Ellis  v.  Iowa  City,  29  Iowa,  229,1870;;  Nevins  *. 
Peoria,  41  111.  502. 

f.  See  and  compare  on  this  point,  in  addition  fo  the  cases  last  referred  to, 
Flagg  v.  Wprcester,  13  Gray,  601, 1859,  and  Livingston  v,  McDonald,  21  Iowa, 
160, 1866;  Bentz  v.  Armstrong,  8  Watts  &  Serg.  40, 1844,  remarks  of  Kenne- 
dy, J.;  Brine  v.  Railway  Company,  ilOTSng.  (Join.  Law,  402;  infra, Sees,  800 

-so?,';";"    .''•'.'.'"       ,'    •',.   '.'''■' .;.;.";:'i,i'.-'.'.        '",-."• 


772  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

§  800.  If,  in  consequence  of  filling  streets  and  cross' streets 
to  the  established  grade  line,  water  is  collected  in  ponds  or  pools  • 
upon  the  adjoining  lots  which  are  thus  brought  below  the 
level  of  the  streets,  the  corporation  is  not  liable  for  damages 
thereby  occasioned,1  not  even,  it  has  been  held,  where  it  would 
have  been  practicable,  in  the  judicial  judgment,  to  have  pre- 
vented it  by  the  construction  of  tunnels,  openings,  or  drains; 
but  upon  the  last  point  the  cases  are  conflicting.2 

§  801.  Since  the  duty  of  providing  drainage  or  sewerage  for 
surface  water  is  in  its  nature  judicial  or  quasi  judicial,  requiring 
the  exercise  of  judgment  as  to  the  time  when,  and  the  mode 
in  which,  it  shall  be  undertaken,  the  claims  of  respective  local- 
ities as  to  order  of  commencement  when  it  cannot  all  be 
effected  at  once,  and  the  best  plan  which  the  means  at  the  dis- 
posal of  the  corporation  renders  it  practicable  to  adopt,  it  fol- 
lows, upon  legal  principles,  that  the  corporation  is  not  liable 
to  a  civil  action  for  wholly  failing  to  provide  drainage  or  sewerage? 

1  Clark  v.  Wilmington,  5  Harring.  (Del.)  243, 1849;  supra,  Sec.  783.  Contra. 
"Weeks  v.  Milwaukee,  10  "Wis.  242, 1860;  modified  in  Smith  v.  Milwaukee, 
18  "Wis.  63, 1864,  and  resting  oh  doubtful  grounds.  See,  also,  Nevins  v  Pe- 
oria, 41  111,  503. 

2  Wilson  v.  Mayor,  &c,  of  New  York,  1  Denio,  595,  is  the  leading  case 
holding  this  doctrine.  It  is  expressly  approved  by  Denio,  C.  J.,  in  Mills  v. 
Brooklyn,  32  N.  Y.  489, 1865,  who  says  that  it  has  always  been  referred  to 
(in  that  state)  as  an  accurate  exposition  of  the  law.  S.  P.  Clark  v.  Wilming- 
ton, 5  Harring  (Del.)  243, 1849;  supra,  Sec.  783.  Contra:  Cotes  v.  Davenport, 
9  Iowa,  227, 1859;  approved,  Templin  v.  Iowa  City,  14  ib.  59;  Weeks  v.  Mil- 
waukee, cited  in  preceding  note ;  Nevins  v.  Peoria,  41  111.  502, 1866,  where 
Lawrence,  J.,  disapproves  of  Wilson  v.  Mayor,  supra,  but  admits  that  the 
rule  there  declared  has  been  quite  generally  adopted ;  Mears  v.  Wilming- 
ton, 9  Ire.  (Law)  73,  82,  also,  disapproves  of  Wilson  v.  Mayor,  &c,  on  the 
ground  that  it  overlooks  the  implied  condition  that  the  work  should  be 
done  properly.  But  who  is  to  judge  whether  it  would  have  been  practicable 
to  have  provided  for  the  drainage  of  the  lots  in  making  the  improvement 
— the  city  authorities,  as  maintained  in  the  New  York  cases,  or  the  judicial 
tribunals?  See  Brine  v.  Railway  Company,  110  Eng.  Com.  Law,  402, 1862; 
supra,  Sec.  799. 

•  Mills  v.  Brooklyn,  32  N.  Y.  489,  1865;  S.  C.  5  Am.  Law  Reg.  (N.  S.)  33, 
with  note  of  Mr.  (now  Judge)  Mitchell;  Wilson  v.  Mayor,  &c.  1  Denio,  595; 
supra,  Sees.  753,  755,  note;  Child  v.  Boston,  4  Allen,  41,  52,  1862;  Carr  v. 
Northern  Liberties,  35  Pa.  St.  324, 1860;  City  Council  v.  Gilmer,  33  Ala.  116, 
1858;  S.  C.  26  ib.  665;  Atchison  v.  Challiss,  Supreme  Court  of  Kansas,  MS. 
1872  (9  or  10  Kansas),  overruling  Leavenworth  v.  Casey,  McCahon  (Kansas), 
R.  124. 


CH.  XXIII.]    ACTIONS  FOR  TORTS. —  DRAINS  AND  SEWERS.  773 

nor,  probably,  for  any  defect  or  want  of  efficiency  in  the  plan  of  sewer- 
age of  di-ainage  adopted; '  nor,  according  to  the  prevailing  and 
perhaps  correct  view,  for  the  insufficient  size  or  want  of  capacity 
of  gutters  or  sewers  for  the  purpose  intended,  particularly  if  the 
adjoining  property  is  not  in  any  worse  position  than  if  no  gut- 
ters or  sewers  whatever  had  been  constructed.2 

§  802.  But  where  the  duty  as  respects  drains  and  sewers 
ceases  to  be  judicial,  or  quasi  judicial,  and  becom.es  ministerial, 
then,  although  there  be  no  statute  giving  the  action,  a  munici- 
pal corporation  is  liable  for  the  negligent  discharge  or  the  neg- 
ligent omission  to  discharge  such  duty,  resulting  in  an  injury 
to  others.3  Therefore,  in  accordance  with  this  distinction  be- 
tween judicial  and  ministerial  duties  (a  distinction  plain  in 
theory,  but  oftentimes  difficult  of  application  to  particular 
cases),  a  municipal  corporation  is  liable  for  negligence  in  the 

1  lb.  Child  v.  Boston,  4  Allen,  41,  1862,  cited  infra,  Sec.  802,  which  was 
three  times  argued.  The  admirable  opinion  of  Mr.  Justice  Hoar  illustrates 
several  phases  of  the  question  of  corporate  liability.  "Upon  mature  delib- 
eration, we  are  all  of  opinion  that  the  defendants  (the  city  of  Boston)  are 
not  responsible  for  any  defect  or  want  of  efficiency  in  the  plan  of  drainage 
adopted:"  lb.  p.  51.  The  corporation  is  not  responsible  for  any  error  or 
want  of  judgment  upon  which  its  system  of  drainage  was  devised:  Per 
Demo,  C.  J.,  in  Mills  v.  Brooklyn,  32  K.  Y.  489,  1865,  who  distinguishes  such 
a  case  from  one  where  there  is  a  want  of  skill  in  constructing  the  work  when 
entered  upon.    See  supra,  Sec.  781,  note ;  infra,  Sec.  802. 

1  Same  authorities,  particularly  Mills  v.  Brooklyn,  supra,  which  was  a 
case  purely  where  the  drain  or  sewer  was  not  sufficiently  large,  and  the  cor- 
poration was  held  not  liable.  See,  also,  Barry  v.  Lowell,  8  Allen,  127, 1864, 
distinguished  from  Child  v.  Boston,  supra;  Flagg  v.  Worcester,  13  Gray, 
601, 1859;  note  to  Mills  v.  Brooklyn,  5  Am.  Law  Eeg.  (N.  S.)  33,  44;  Atchi- 
son v.  Challiss,  above  cited;  Dermont  v.  Detroit,  4  Mich.  (Gibbs)  435, 1857. 
In  Carr  v.  Northern  Liberties,  35  Pa.  St.  324, 1860,  it  was  held  that  a  mu- 
nicipal corporation  was  not  liable  for  neglecting  to  provide  a  sufficient 
number' of  inlets  to  its  sewers  (constructed  for  drainage  purposes),  which 
were  sufficient  when  constructed;  but  which  have  ceased  to  be  so  in  con- 
sequence of  the  greater  extent  of  territory  since  graded  and  built  upon. 

3  Barton  v.  Syracuse,  36  N.  Y.  54,  1867;  37  Barb.  392;  Child  v.  Boston,  4 
Allen  (Mass.),  41,1862.  Compare  Dermont®.  Detroit,  4  Mich.  435,  1857; 
City  Council1  v.  Gilmer,  33  Ala.  116,  1858;  S.  C.  26  ib:  665;  Jones  v.  New 
Haven,  34  Conn.  1;  Logansport  v.  Wright,  25  Ind.  512;  supra,  Sec.  753. 
Ministerial  duties,  as  distinguished  from  those  which  are  discretionary  or 
quasi  judicial,  are  such  as  are  "absolute,  certain,  and  imperative:"  Per 
Denio,  C.  J.,  in  Mills  v.  Brooklyn,  32  N.  Y.  489, 1865. 


774  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

ministerial  duty  to  keep  its  sewers  (which  it  alone  has  the 
power  to  control  and  keep  in  order)  in  repair  as  respects  per- 
sons whose  estates  are  connected  therewith  by  private  drains, 
inconsequence  of  which  such  persons  sustain  injuries  which 
would  have  been  avoided  had  the  sewers  been  kept  in  a  proper 
condition.1  If  the  sewer  is  negligently  •permitted  to  become  ob- 
structed or  filled  up  so  that  it  causes  the  water  to  back-flow  into 
cellars  connected  with  it,  there  is  a  liability  therefor  on  the 
part  of  the  municipal  corporation  having  the  control  of  it,  and 
which  is  bound  "  to  preserve  and  keep  in  repair  erections  it 
has  constructed  so  that  they  shall  not  become  a  source  of  nui- 
sance "  to  others.2  The  work  of  constructing  gutters,  drains, 
and  sewers,  is  ministerial,  and  when,  as  usually  is  the  case,  the 
undertaking  is  a  corporate  one,  the  corporation  is  responsible 
in  a  civil  action  for  damages  caused  by  the  careless  or  unskill- 
ful manner  of  perforriiing  the  work.3 

1  Child  v.  Boston,  4  Allen,  41, 1862 ;  mpra,  Sec.  778.  There  is  considered 
to  be  no  liability  in  Massachusetts  on  the  part  of  a  city  for  failing  to  keep 
a  public  cesspool  and  sewer  in  repair,  in  consequence  of  which,  waste  water 
accumulates  and  flows  into  neighboring  cellars  not  connected  with  the  sewer: 
Barry  b.  Lowell,  8  Allen,  127,  1864,  distinguished  from  Child  v.  Boston, 
mpra.  But  where  the  reason  on  which  this  distinction  rests  does  not  apply, 
and  where  the  work  would  be  regarded  as  a  corporate  one,  the  duty  to  pre- 
vent it  becoming  a  nuisance  might  be  such,  we  think,  as  to  impose  a  liabil- 
ity on  the  corporation  for  injuries,  which  would  not  have  been  suffered  had 
it  been  kept  in  order:  Supra,, Sec.  780. 

'*  Barton  v.  Syracuse,  36  JT.Y.  54, 1867;  Mayor,  &c.  ofNew  York  o.  Furze, 
3  Hill  (N.  Y.),  612, 1842,,  explained  in  Wilson  v.  Mayor,  &c.  of  New.  York,  1 
Denio,  595, 1845,  and  in  Mills  v.  Brooklyn,  32  N.  Y.  489, 1865,  and  the  ground 
of  the  decision  stated  as  in  the  text.  City  cannot  discharge,  drainage  into 
a  mill-race  owned  by  others :  Columbus  ,e.  Woolen  Company,.  33  Ind.  435, 
1870;  but  .may  connect  its  sewerage  with  any  natural  flow  of  water,  and  is 
not  liable  for  the  falling  in  of  a  sewer  (with  which  it  has  connected  it  own) 
which  it  did  not  build,  and  which,  being  on  private  property,  it  has.  no 
right  to  enter  to  repair,  and  where  the  injury  is  not  shown  to  have  resulted 
from  the  connection  of  the  city's  sewer /with  the  old  sewer,  whose  fall 
caused  the  injury :  Munn  «.  Pittsburg,  40  Pa.  St.  364,  1861.  Liability  of  city 
for  drain  at  end  of  wharf :  Bichardson  v.  Boston,  19  How.  270. 

3  Supra,  Sees.  753,  779,  780,  781.  In  Child  v.  Boston,  4.  Allen,  41, 1862,  it 
is  held  that  the  mayor  and  aldermen  of,  Boston,  in  building  seVers,  act  as 
public  statutory., officers,  and  not  .as  agents  of  the  city  j  but  generally  the 
power  to  construct  sewers  is  private  or  corporate.  This  is  very,  clearly  ex* 
plained,  by  Manning,  J.,  in  Detroit  v.  Corey,  9  Mich.  165, 184,  1861 ;  Mills  v. 
Brooklyn,  32  N.  Y.  489, 1865;  Dermpnt  «.  Dejrpit,  4  Mich-:  435„1857;  Ross 
v.  Madison,  1  Ind.  281 ;  Commissioners  v.  Wood,  10  Pa.  St.  93,  95. 


CH.  XXIII.]  ACTIONS  FOR  TOUTS. — CONCLUSION.  775 

The  principle,  indeed,  is  a  general  one,  that  while  there  is 
no  implied  liability  for  damages  necessarily  occasioned  by  the 
construction  of  any  municipal  improvement  authorized  by  law, 
yet  if  the  work  thus  authorized  be  not  executed  in  a  proper 
or  skillful  manner,  there  will  arise  a  common  law  liability  for 
all  damages,  not  necessarily  incident  to  the  work,  and  which 
are  chargeable  to  the  unskillful  or  improper  manner  of  exe- 
cuting it.1 

1  Same  authorities.  Supra,  Sees.  779,  78)..  Brine  v.  Railway  Company, 
110  Eng.  Com.  Law,  402,  411,  per  Crompton,  J,  cited,  11  House  of  Lords 
Cases,  714;  Sprague  v.  Worcester,  13  Gray,  193, 1859, per  Shaw,C.  J.;  Perry 
v.  Worcester,  6  Gray,  544, 1856,  and  cases  cited;  Proprietors  of  Locks,  &c.  v. 
Lowell,  7  Gray,  223;  Flagg  v.  Worcester,  13  Gray,  601,  605;  City  Council  v. 
Gilmer,  33  Ala.  116, 1858;  S.  C  26  ib.  665;  Barton  v.  Syracuse,  36  N.  Y  54, 
1867;  Conrad  v.  Ithaca,  11  N.  Y.  158 ;  Cowley  v.  Sunderland  (mayor  of ),  6 
H.  &  N.  565, 1861.  Further  as  to  the  right  to  maintain  actions  against  bod- 
ies executing  public  works,  under  legislative  authority,  for  the  improper 
made  in  which  their  powers  have  been  exercised,  see  opinion  of  Blackburn, 
J.,  in  Mersey  Docks  Cases,  11  House  of  Lords  Cases,  713,  etseq. 


And  here,  according  to  its  plan,  the  present  work  is  brought 
to  a  close.  Mr.  "Willcock,  in  concluding  a  similar  treatise 
upon  the  Municipal  Corporations  of  England,  before  the 
Reform  Act,  disgusted  with  their  petty  disputes,  intrigues, 
and  corruptions,  declared  that  they  had  long  since  ceased  to 
have  any  beneficial  operation,  and  added:  "I  have  traveled 
through  this  work  as  a  merchant  from  Medina  to  Damascus, 
a  weary  waste  of  way :  there  is  as  little  to  gratify  the  mind  in 
the  investigation,  as  to  please  the  eye  in  the  desert."  Such 
has  not  been  our  experience  in  the  present  work.  On  the 
contrary,  the  extensive  field  over  which  we  have  just  passed 
has  presented  at  every  turn  new  and  interesting  subjects  for 
contemplation. 

Our  municipalities,  in  their  creation  and  operations,  stand 
closely  related  both  to  the  Government  and  to  the  Law.  They 
offer  to  the  Legislator  and  the  Jurist  questions  of  perplexing 
intricacy  and  deepest  moment.  How  thoroughly  our  muucipal 
institutions  are  wrought  into  the  frame  work  of  our  govern- 


776  MUNICIPAL   CORPORATIONS.  [CH.  XXIII. 

ment  and  administration,  how  important  the  functions  they 
are  made  habitually  to  discharge,  how  closely  in  the  exercise 
of  their  diversified  powers,  and  in  the  performance  of  their 
varied  duties,  they  touch  the  daily  life  and  affect  the  most  im- 
portant interests  of  the  citizen,  cannot  fail  to  impress  even. the 
most  inattentive  observer.  They  are  quickened  by  the  spirit 
of  the  times,  and  in  all  their  multiform  purposes  they  illustrate 
its  activity  and  enterprise.  Walled  towns  belong  to  a  past  age. 
The  violence  and  insecurity  of  that  age  have  also  passed  away, 
but  in  their  place,  our  chartered  corporations,  particularly  our 
large  cities,  are  encountering  the  perils,  not  less  alarming,  of 
corruption  and  fraud  on  a  gigantic  scale,  engendered  by  the 
large  revenues  and  official  patronage  at  their  disposal,  and  the 
disinclination,  often  the  steady  refusal,  of  the  substantial  citi- 
zens to  take  a  controlling  part  in  the  management  of  municipal 
affairs. 

How  best  to  govern  our  cities  is  yet  an  unsolved  problem 
in  legislation;  but  it  is  clear,  that  for  the  excesses  to 
which  municipal  bodies  are  prone  the  Courts  afford  the  most 
effectual,  if  not  the  only,  remedy ;  and  it  is  impossible  to  rise 
from  the  survey  of  the  authority  of  the  judicial  tribunals  over 
them,  to  enforce  their  rights  on  the  one  hand,  and  to  enforce 
rights  against  them  on  the  other,  without  profound  admiration 
for  the  learning  and  conservative  wisdom  of  the  judges  as 
displayed  in.  the  recorded  judgments,  which  we  have  sought 
to  photograph  in  these  pages. 


INDEX. 


[the  references  are  to  The  sections,  unless  otherwise  specially  stated.] 


ABATEMENT. 

Of  suits  by  public  officers,  176,  n. 
ACCEPTANCE  OF  PUBLIC  WORK. 

Effect  of,  386,  651,  n. 

ACCEPTANCE  OF  CHARTERS. 

Necessary,  when  granted  by  the 
king,  15,38. 

But  not  when  the  corporation  is 
created  by  parliament,  15,  38. 

Or  by  the  legislatures  of  the  states, 
23. 

Legislature  may  make  acceptance 
necessary,  23,  719,  n. 

Legislation  of  this  character  is  con- 
stitutional, 23. 

Acceptance,  how  established  in 
England,  15, 

May  be  implied  in  proper  cases,  23,  n. 

Private  corporations  cannot  be  com- 
pelled to  accept  charter,  29. 

But  public  and  municipal  may  be 
thus  compelled,  30. 

Quo  warranto,  where  no  legal  accept- 
ance, 719,  n. 

ACTION  AND  LIABILITY.  See 
Chap.  XXIII.  on  Civil  Actions  and 
Liabilities,  p.  701. 

When  private  action  lies,  39,  752. 

Distinction  between  public  and  pri- 
vate capacity,  39,  766. 

Authority  of  legislature  over  mu- 
nicipal liabilities,  44. 

Liability  of  municipal  officers  to  ac- 
tions, 175, 176. 

Evidence  in  such  actions,  176. 

Actions  to  enforce  ordinances  (see 
Ordinances),  341. 

On  ordinary  warrants,  in  whose 
name  (see  Warrant),  406. 

Suit  by  corporationVon  contract,  ad- 
mits what,  373. 

Liability  in  respect  to  opening 
streets  (see  Eminent  Domain; 
Streets),  474,  475. 

Liability  of  street  railway  com- 
panies, 572. 

98 


Actions  on  contracts  for  local  im- 
provements, 400,  648. 
.    Actions  to  recover  taxes  and  assess- 
ments, 651-657. 

Actions  against  ministerial  officers, 
691. 

Actions  upon  contracts,  749-751. 

Actions  to  recover  back  illegal  taxes, 
751. 

Actions  for  torts,  752-802. 

Actions  for  property  destroyed  by 
mobs,  760. 

Actions  for  neglect  of  corporate 
duty,  761,  779. 

Actions  for  torts  of  officers  and  ser- 
vants, 39,  766-779. 

Actions  for  negligent  execution  of 
powers  and  duties,  781-802. 

Actions  for  damages  caused  by 
grading  streets,  782-784,  797-800. 

Actions  for  unsafe  streets  and  side- 
walks, 785-793. 

Actions  against  author  of  defect  in 
street,  794,  795. 

Actions  against  railway  companies 
for  defects  in  streets  caused  by 
them,  796. 

Actions  for  damages  caused  by  run- 
ning and  surface  water,  797-800. 

Actions  for  damages  by  drains  and 
sewers,  801,802. 

ACTS. 

Must  be  transacted  at  corporate 
meeting,  197. 

Of  de  facto  officers  valid,  214, 716,  n. 

Quorum  essential  to  valid  action,  230. 

Acts  authorized  bv  law,  not  action- 
able, 781,  800-802. 

ADJOURNMENT. 

Power  to  adjourn  corporate  meet- 
ings, 203-207. 

What  may  be  done  at  adjourned 
meeting,  225. 

Proof  of  adjournment,  235. 

ADMISSION  TO  OFFICE.   See  Man- 
damus. 


778 


INDEX. 


ADVERSE  POSSESSION.    See  Lim- 
itation of  Actions. 

AGENTS.     See  Contracts;  Respon- 
deat Superior. 

AGRICULTURAL  LANDS. 

Taxation  of,  633,  634. 
ALDERMAN. 

Office  at  common  law,  157. 

ALLEYS.    See  Streets. 

ALLUVION. 

Rights  to,  within  corporate  limits,- 
433,  n.,  497. 

AMENDMENT. 
Of  municipal  charters,  52. 
Of  corporate  records,  232-238. 
Of  writ  and  information  in  man- 
damus proceedings,  699,  n. 

AMOTION  AND   DISFRANCHISE- 
MENT 177. 

AMUSEMENTS. 

Power  to  license  and  tax,  291,  632. 
ANCIENT  CITIES. 

Historical  view  of,  1. 

ANIMALS.    See  Dogs;  Ordinances. 

Power  to  impound  and  forfeit,  101. 

Power  to  forfeit  animals  at  large,  ■ 
282. 

Mode  of  enforcing  by-law  respect- 
ing, 283. 

Slaughtering  of  animals,  296,  n. 

Power  to  fine  owner  of  animals  at 
large,  335. 

APPEAL.    See  Certiorari. 

From  proceedings  of  inferior  tri- 
bunals, 368,  743. 

From  proceedings  to  open  streets, 
476,740. 

Effect  on  right  to  mtmdamixsfGffl ',  n. 

Corporate  appeal  from  judgment 
against  council,  712,  n. 

In  mandamus  proceedings,  712,  n. 

APPROPRIATION. 
Of  private  property,   see  Eminent 
Domain. 

APPROPRIATION  OF  MONEY. 

Limit  on  power  of  council,  13,  55, 

100. 
Illegal    appropriation,    restrained, 

731-737. 


ARREST. 
Power  of  police  officers  to  make, 

150. 
When  city  council  may  authorize, 

149,  n. 
Arrest  without  warrant,  347,  n. 

ASSAULT. 
By  officers,  no  corporate  liability 

for,  773. 
Municipal  power  to  punish,  302,365. 

ASSEMBLY,     CORPORATE.      See 
Meetings,  Corporate. 

ASSESSMENT     AND    TAXATION. 
See  Taxation. 

Constitutional  provisions  restricting 

power  of,  27; 
Extent  of  legislative  power,  45, 481. 
Subject  treated  in  Chap.^XIX.  (see 

Taxation),  586,  et  seq. 
Difference'  between    "assessment" 

and  "tax,"  599;  602,  617. 
Mandamus  to   compel    assessment, 

667,  n. 
Liability  to  refund  illegal  taxes,  751. 

ASSUMPSIT.    See  Action  and  Lia- 
bility; Contract. 
Enforcement  of  by-laws  by  action 

of,  341',  346,  n. 
Enforcement  of  taxes  by  action  of, 

645,  655. 
Implied  assumpsit,  383,  750. 

ATTACHMENT. 

Municipal  revenues  not  subject  to,64. 
Whether  municipal  corporation  lia- 
ble to  garnishment,  65. 
For  not  returning  mandamus,  709- 
711. 

ATTORNEY 
Power  of  municipal  corporation  to 

employ,  399. 
Liability  of  corporation  to,  399. 
Compensation  of  city  attorney,  172, 

a.,  399. 

ATTORNEY  GENERAL. 
Suits  against  corporations  in  name 
of,  729,  n. 

AUCTION  —AUCTIONEER. 
Sales  by,  on  streets  prohibited,  538. 
Licensed  auctioneer  not  corporate 
agent,  755. 

AVOCATIONS. 
Power  to.  tax  (see  Taxation),  624,  630 
-632. 


INDEX. 


779 


AWNING.  ' 

Municipal  power  over,  538,  n. 
Liability  for  unsafe,  p.  755,  note, 
788,  n. 

AYES  AND  NAYS. 
Charter  provision    held  directory, 

229. 
Construction  of  special  provision, 

374,  n. 

BAKERS. 

Powers  relating  to,'281,  n. ;   291,  n. 
Unwholesome  Dread,  325. 

BALLOT.    See  Election. 

Mode  of  voting  by,  134, 137. 
BANK. 

Taxation  of  bank  and  bank  stock, 
629. 

BANQUETS. 

No  implied  power  to  give,  100. 
BAWDY  HOUSES. 

Power  to  suppress,  310,  364. 

BEASTS.    See  Animals;  Ordinances. 

BENEFITS  AND  DAMAGES.  See 
Damages;  Eminent  Domain  ;  Taxa- 
tion. 

BEVERAGES. 
Power  to  regulate,  license,  etc.,  297 
-299. 

BOARD  OF  HEALTH.  See  Health; 
Nuisance. 

Powers,  and  evidence  of  acts  of, 
305,  n.  . 

BILLIARD  ROOM. 
Power  to  prohibit,  309,  n. 

BOATS  AND  VESSELS. 
Power  to  tax,  626,  627. 

BOOKS  AND  PAPERS.  See  Records. 

Mode  of  enforcing  delivery,  684. 
Mode  of  compelling  inspection,  687. 

BONDS.  See  Contracts;  Office; 
Railroads  ;   Supersedeas. 

Negotiable  bonds,  express  power  to 
issue,  404,  405. 

As  to  implied  power  to  issue,  407. 

Power  of  agent  to  sell  bonds,  374,  n. 

Mandamus  to  enforce  issue  and  de- 
livery of,  667,  n. 

Holder's  right  to  enforce  payment 
by  mandamus,  688. 


BONDS — OFFICIAL.    See  Officers. 
Power  to  require,  and  validity  of, 
153—155. 

BORROWING  MONEY.     > 

Constitutional  provision  restricting 

power,  27. 
Effect  of  grant  of  power,  42. 
Power  to  borrow  may,  it  seems,  be 

implied,  81,  el  seq. 
Express  power  of,  gives  right  to  issue 

negotiable  securities,  83,  84. 
Limitations    on   power    to   create 

debts,  85. 
Borrowing  money  to  aid  railroads 

(see  Railroads). 
Construction  of  special  power  to 

borrow  money,  372,  n. 
What  the  power  to  borrow  money 

authorizes,  392,  n. 

BOROUGHS. 

In  England,  historical  sketch  of,  pp. 

11-14,  Sec.  8. 
Incorporation  and  representation  in 

parliament,  pp.  11-14,  Sec.  8. 
Regulation  of,  in  Pennsylvania,  p. 

59,  n.,  Sec.  20. 

BOSTON. 
History  of  change   from  town  to 

city,  p.  36,  Sec.  11. 
Effect  was  to  continue,  not  dissolve, 

the  corporation,  p.  417,  n. ;  431,  n. 

BOUNDARIES.    See  Chap.  VIII,  on 
Boundaries,  p.  165. 

Corporate  boundaries  must  be  de- 
fined, 124. 

Boundaries  on  rivers,  124,  n. 

Boundaries  to  low  water  line,  124,  n. 

Not  two  like  municipal  corporations 
in  same  limits,  125. 

Boundary  line  fixed  by  user,  125,  n. 

Legislative  power  to  change,  126. 

Rights  of  creditors  must  be  respect- 
ed, 36. 

Annexation  of  territory,  and  taxa- 
tion, 36, 126. 

Effect  of  change  of,  on  homestead 
right  and  rural  lands,  126,  n. 

Power  to  divide  towns,  127. 

Corporate  property  and  debts  on  di- 
vision, 128. 

BOWLING  ALLEY. 
Power  to  prohibit  keeping  of,  309. 

BREAD. 

Power  to  forfeit,  281,  n. 
Power  to  regulate,  291,  n. ;  825. 


780 


INDEX. 


BRIDGE.    See  Action;  Streets. 
Legislature  may  compel  or  author- 
ize a  municipality  to  build,  43, 467. 
Grants  in  aid  of,  charitable,  437,  n. 
Toll  bridge,  rightto  condemn,  454,  n. 
Power  to  build,  536,  n. 
Power  to  protect— Injuries  to,  539. 
Powers  and  duties  of  municipalities 

in  respect  to,  579. 
Mandamus  to  compel  repair,  673. 
Indictment  for  non-repair,  745. 
Action  for  damages  by  unsafe  bridge, 
789. 
BROTHEL.    See  Bawdy  House. 
BUILDINGS.    See  Fire;  Streets. 
BUILDING  MATERIALS. 
Right  to  incumber  street  with,  582- 
583. 
BURIAL  GROUNDS.    See  Cemete- 
ries; Dedication. 
Law  of  burials,  306,  n. 
Municipal  power  over,  306,  307. 

BUTCHERS.    See  Markets. 

Power  to  regulate,  319, 296. 
BY-LAWS.    See  Ordinances. 

Subject  treated,  Chap.  XII.,  p.  270, 
et  seq. 

CANDIDATES.    See  Elections  ;  Of- 
fice. 

CANVASSERS.      See   Elections; 
Mandamus;    Quo  Warranto. 

CATTLE.    See  Animals;    Ordinan- 


CEMETERIES. 
Powers  and  ordinances  respecting, 

306,  307. 
Dedication  of  property  for,  510. 

CERTIORARI.    See  Appeal. 

When  it  lies  to  inferior  tribunals, 
368,  476,  739. 

In  proceedings  in  respect  to  streets, 
476,  740. 

In  proceedings  in  respect  to  local 
improvements,  643,  740. 

Effect  of  being  taken  away,  667,  n. 

Remedy  by,  for  illegal  corporate 
acts  and  proceedings,  739,  et  seq. 

What  proceedings  reviewable  by, 
740,  741. 

Effect  on,  of  appeal  being  given,  743. 

What  the  writ  removes,  742. 

What  the  revisory  court  may  in- 
quire into,  742. 


CHANCERY.  See  Equity;  Injunc- 
tion. 

CHARITY.  See  Trustees  and  Trust 
Property. 

Municipal  corporation  may  be  char- 
itable trustee,  37, 437. 

Chancery  may  appoint  new  trustee, 
37, 437. 

Instances  of  charitable  gifts  and 
trusts  sustained,  437,  442. 

CHARTER. 

dinances. 


See  Acceptance;    Or- 


Origin  of  in  the  middle  ages,  5. 

Of  community  in  France,  6. 

Outline  of  ancient  charter,  6. 

Of  municipalities  in  Spain,  7. 

Of  towns  and  boroughs  in  England, 
8,  16. 

May  be  granted  by  the  king  in  Eng- 
land or  by  act  of  parliament,  15. 

Difference  between  Regal  and  Par- 
liamentary municipal  corpora- 
tions, 15. 

Charter  of  incorporation,  defined, 
15. 

What  powers  may  be  conferred  by 
the  king's  charter,  15. 

Acceptance  of  king's  charter  neces- 
sary, 15. 

Acceptance,  how  shown,  and  effect 
thereof,  15. 

Control  of  parliament  over  royal 
charters  unlimited,  15. 

Effect  of  General  Corporations  Act 
of  1835,  16. 

Outline  features  of  ordinary  muni- 
cipal charters,  19. 

Importance  of  careful  study  of 
charter  provisions,  19. 

General  incorporation  acts  substi- 
tuted for  special  charters,  20. 

Advantages  of  general  acts  over 
special  charters,  20. 

Summary  of  the  general  acts  of 
some  of  the  states,  given,  20; 

Acceptance  of  charter  not  necessa- 
ry when  legislature  creates  cor- 
porations, 23. 

Special  constitutional  provisions  in 
respect  to  charters,  24.' 

Municipal  charters  defined,  49. 

Municipal  charters  judicially  no- 
ticed, 50. 

Proof  of  charters,  how  made,  51. 

Proof  of  by  user,  reputation,  and 
legislative  recognition,  51. 

When  charter  takes  effect,  51,  n. 

Effect  of  repeals  and  amendments, 
52. 


INDEX. 


781 


CHARTER — Continued. 

General  laws  and  special  charters, 
—  effect  of  conflict  between,  64. 
611. 

Special  legislation  ordinarily  con- 
trols general  legislation,  54,  n. 

What  powers  municipal  corpora- 
tions possess,  55. 

Canons  of  construction  stated,  55. 

Powers  strictly,  rather  than  liber- 
ally, construed,  55,  n. 

When  doubtful,  held  not  to  exist, 
55,  n. 

Usage  as  affecting  construction,  56. 

Discretionary  powers  not  subject 
to  judicial  control,  58,  669,  801. 

Mandatory  and  discretionary  pow- 
ers, difference  and  tests,  62. 

Public  powers  cannot  be  delegated, 
60,  567,  618. 

Nor  surrendered,  61,  567. 

When  duty  rests  on  corporation, 
and  when  on  its  officers  as  indi- 
viduals, 63. 

Revenues  exempt  from  judicial 
seizure,  64. 

And  from  garnishment,  65. 

Special  charter  power  as  to  wharves, 
67. 

Special  charter  power  as  to  ferries, 
78. 

Special  charter  power  as  to  borrow- 
ing money,  81,  372,  n.,  392,  n. 

Special  charter  power  as  to  indebt- 
ness,  85. 

Special  charter  power  as  to  rewards 
for  offenders,  91. 

Special  charter  power  as  to  public 
buildings,  92. 

Special  charter  power  as  to  police 
regulations,  93. 

Special  charter  power  as  to  preven- 
tion of  fires,  94. 

Special  charter  power  as  to  quaran- 
tine and  health,  95. 

Special  charter  power  as  to  indem- 
nifying oflicers,  98,  372,  n. 

Special  charter  power  as  to  furnish- 
ing entertainments,  100. 

Special  charter  power  as  to  party 
walls,  102. 

Special  charter  power  as  to  the 
public  defence,  103. 

Special  charter  power  as  to  aid  to 

railway  companies,  104. 
Forfeiture  and  surrender  of  char- 
ters, 109. 
Revival  by  new  charter,  116. 
General  welfare  clause  construed, 

329-340. 
Charters  in  respect  to  capacity  to 
to  contract,  371,  et  seq. 


Charters  in  respect  to  capacity  to 
acquire  and  hold  property,  433, 
et  seq. 

Forfeiture  of  charter,  how,  109. 
720,  n.  ' 

CHARTER  DAY.    See  Election. 

CHOSE    IN    ACTION.      See  ,  Con- 
tracts; Warrants. 
Power  to^tax,^629,  n. 

CHURCH  SQUARE.     See   Dedica- 
tion. 

CISTERN.    See  Streets. 

CITY  ATTORNEY.    See  Attorney. 

CITY  CORPORATION.    See  Char- 
ter; Corporation;  Officers. 

How  distinguished  from  quad  cor- 
porations, 10. 

Difference  aa  to  liability  to  actions, 
761,  789. 

CITY  COUNCIL.    See  Council. 

CITY  RAILWAYS.   See  Horse  Rail.- 
ways. 

"CITY  SLIP  CASES'" 

In  California,  as  to  mode  of  dispos- 
ing of  corporate  property,  447, 
750. 

COMMISSION. 
Of  officer,  evidence  of  title,  716. 

COMMITTEE. 
When  majority  may  act,  221. 
Power  of  council  to  appoint,  227. 
Notice  to  appear  before,  227,  n. 
What  duties  may  be  devolved  on, 

60. 
Effect  of  receiving  report  of,  242. 
Power  of,  to  make  contracts,  376,  n. 

COMMON  COUNCIL.    See  Meetings 
Corporate,  Chap.  X.  p.  230,  et  seq. 

Who  compose,  211. 

Constitution  and  meetings  of,  208, 

et  seq. 
Mode  of  proceeding,  226,  et  seq. 

COMMONS.    See  chapter  on  Dedica- 
tion. 

COMPENSATION. 
For  land  taken  (see  Eminent  Do- 
main), 477,  et  seq. 

COMPLAINTS. 
Requisites  of  to  enforce  ordinances, 
347. 


782 


INDEX. 


COMPROMISE. 
Of  disputed  claims,  power  to  make, 
398. 

COMPULSION. 
Illegal  taxes  paid  by,  recoverable 
back,  751. 

CONCURRENCE. 
Required  in  corporate  acts,  220, 229, 
701,  n. 

CONDEMNATION  OF  LAND.  See 
Eminent  Domain,  Chap.  XVI. 

CONGRESS. 
Power  to  create  corporations,  8. 

CONSEQUENTIAL  INJURIES.  See 
Actions,  Chap.  XXIII.  Sec.  781, 
et  seq. 

CONTESTED  ELECTIONS.  See 
Elections  ;  Office  ;  Mandamus  ; 
Quo  Warranto. 

CONVEYANCE.    See  Property. 
Mode  of  executing  and  proof  of, 

447,  450,  451. 
Tax  deed  (see  Taxation). 

CONVICTION.     See    Municipal 
Courts;  Ordinances. 
Summary  conviction  valid,  344, 361. 
Revision  of,  on  certiorari,  740. 

CONSTITUTIONAL  ^PROVISIONS. 

Charter  may  be  submitted  to  the 
voters  of  the  locality  for  accept- 
ance or  rejection,  23. 

Special  constitutional  provisions 
construed,  24. 

Some  constitutions  forbid  the  grant- 
ing of  special  charters,  24. 

Power  of  the  legislature  over  mu- 
nicipalities supreme,  except  as 
limited  by  the  constitution,  24,  BO. 

New  York  constitutional  provision 
as  to  creating  corporations,  25. 

"When  required  to  be  created  by 
general  law,  26. 

Provisions  restricting  power  of  as- 
sessment, taxation,  &c.  27. 

Provision  requiring  object  of  legis- 
lative act  to  be  expressed  in  its 
title,  28. 

Extent  of  legislative  control  over 

-  municipal  corporations,  Chap.  IV. 
29,  et  seq. 

When  legislative  act  becomes  a  con- 
tract, Dartmouth  College  Case,  29. 

Legislature  may  repeal  municipal 
ferry  franchise,  31,  n.,  40. 

How  far  municipal  corporations  are 


within  the  protection  of  constitu- 
tional provisions  as  to  contracts 
and  property,  32,  47. 

Special  provision  of  forfeiture,  for 
the  use  of  a  county,  not  a  con- 
tract, 32. 

Legislative  "control  over  municipal 
offices  and  officers,  and  over  po- 
lice officers,  33,  34. 

Legislative  control  over  municipal 
funds  and  revenues,  35. 

But  constitutional  rights  of  credit- 
ors cannot  be  impaired,  36,  41. 

Legislative  power  to  abolish  and 
alter  municipal  corporations,  37. 

Acts  conferring  public  trusts  upon 
municipal  corporations  are  re- 
pealable,  40. 

Legislature  has  full  power  over 
public  property  of  municipal  cor- 
porations, 43. 

But  not,  probably,  over  their  pri- 
vate property,  40. 

Power  to  compel  municipal  corpo- 
ration to  create  debts,  43. 

Power  to  compel  it  to  recognize 
moral  obligations,  44. 

And  to  pay  debts  not  binding  at 
law,  44. 

Legislature  may  validate  previous 
corporate  acts  and  by-laws,  46. 

Legislative  control  over  trust  prop- 
erty, 47. 

Power  to  authorize  aid  in  the  pub- 
lic defence,  103. 

Power  to  authorize  aid  to  railway 
companies,  104. 

Summary  convictions,  344,  361. 

Trial  by  jury  in  municipal  courts, 
361,  367. 

Legislative  power  over  municipal 
contracts  and  property,  see  Chap. 
TV. 

Constitutional  provisions  respecting 
Eminent  Domain,  454,  et  seq. 

Legislative  power  over  property 
dedicated  to  public  use,  513. 

Power  to  confer  exclusive  privil- 
eges, 547-550. 

Taxing  power,  its  scope  and  limita- 
586,  et  seq. 

Power  to  make  local  assessments, 
481, 590. 

Constitutional  provisions  in  respect 
to  taxation  and  local  assessments, 
592-604. 

Summary  collection  of  taxes  con- 
stitutional, 651. 

Taxation  of  agricultural  lands  for 
municipal  purposes,  633. 

Authority  to  change  grade  of 
streets,  784. 


INDEX. 


783 


CONSTRUCTION. 
Of  municipal  powers,  rule  of,  55. 

CONTEMPT.  See  Attachment  ;  MAN- 
DAMUS. 

CONTRACT.    See  Actions;   Lowest 
Bidder. 

Subject  of,  treated  in  Chap.  XIV., 
370,  et  seq. 

Valid  cantracts  will  be  enforced,  p. 
20,  Sec.  9,  n. 

Limited  power  of  quasi  corporation, 
Sec.  10,  and  note  on  p.  31. 

Limited  power  of  the  New  England 
town,  11, 13. 

Constitutional  provisions  in  respect 
to,  27. 

Legislative  control  over,  see  Chap. 
IV.,  passim,  and  title  Constitutional 
Provisions. 

Constitutional  rights  of  creditors 
and  others,  36-47. 

Power  to  borrow  money,  81,  84. 

Limitation  on  power  to  become  in- 
debted, 85-90. 

Promises  to  pay  rewards  for  offend- 
ers, 91. 

Contracts  to  repair,  erect,  and  fur- 
nish public  buildings,  92. 

Contracts  to  purchase  fire  engines, 
etc.,  94. 

Contracts  to  procure  supply  of 
water,  97. 

Contracts  to  indemnify  officers  of 
the  corporation,  98. 

Contracts  in  excess  of  corporate 
power,  void,  100, 103,  749. 

Contracts  and  bonds  in  aid  of  rail- 
ways (see  Railroads),  104. 

Effect  of  dissolution  of  corporation 
oh  contracts,  113. 

In  what  name  to  be  made  and  en- 
forced, 121,  123, 176,  n. 

Effect  of  division  or  change  of  cor- 
porate boundaries  on  contracts 
and  debts,  129. 

Contracts  not  under  seal,  valid  (see 
Seal),  132,  374. 

Official  bonds  of  municipal  officers, 
.153. 

Compensation  of  municipal  officers, 
168. 

Contracts  in  violation  of  ordinances, 
245,  n. 

Contracts  creating  monopolies,  296. 

Contracts  of  board  of  health,  305,  n. 

Contract  to  purchase  market  site, 
315,  372. 

Extent  of  power  to  contract,  and 
how  conferred,  371,  372. 

All  persons  bound  to  tak«  notice,  372. 


Contracts  with  municipal  officers, 

371,  n. 
Contracts  in  violation  of  by-laws  or 

charter,  void,  245,  n.,  372. 
Contracts  in  excess  of  lawful  power, 

void,  372,  749. 
Mode  of  contracting,^373. 
Seal  not  necessary  (see  Seal),  132, 374. 
Contracts  by  ordinance,  or  resolu- 
tion, or  vote,  374. 
Mode  of  varying  or  modifying  a 

contract — by  parol,  375. 
Power  of  ^agents  and  committees  to 

make  contracts,  376. 
Mode  of  execution  by  agents  — when 

corporation  bound,  376-382. 
When  personal  liability  attaches  to 

agent,  376-382. 
Contracts  must  be  made  with  proper 

body  or  person,  379,  n. 
Unauthorized  contracts — ultra  vires 

a  defence,  381,  382,  749. 
Instances  of  illegal  and  void  con- 
tracts, 382. 
Contracts  against  public  policy,  void, 

382. 
To  surrender  legislative  discretion, 

void,  382. 
Implied  contracts,  when  deducible, 

383,  384,  750. 
Illustrations  of  implied  liability,  384, 

750,  751. 
Ratification  of  unauthorized  con- 
tract, 385,  447,  750. 
When   ordinance  becomes  a  con- 
tract, 395. 
Contracts  to  sell  property,  396. 
"     to  purchase  property,  397. 
' '     to  settle  disputed  claims,  398. 
. "     with  attorneys  at  law,  399. 
"     for  local  improvements,  400, 
648. 
Stipulation  reserving  control  over 

contracts,  403. 
Negotiable  bonds,  rights  of  holders, 

404. 
Ordinary  warrants. — Defences  there- 
to, 409,  412. 

Liability  of  indorser  of,  408. 

Payment  of,  effect,  409. 

Cancellation  of,  effect,  406,  412. 

Rights  and  remedies  of  holder  of, 
410,  411,  685,  n. 

Defences  to,  ultra  vires,  etc.,  412. 

Payable  out  of  special  fund,  413. 

Interest  on,  414. 
Railroad  Aid  Bonds. —  Course  pf  de- 
cision of  U.  S.  Supreme  Court, 
415. 

Leading  cases  in  that  court  no- 
ticed, 417. 


784 


INDEX. 


CONTRACTS — Continued. 

State  Court  decisions  referred  to, 

423. 
General  result  stated,  426. 
Civil  actions  upon  contracts,  749 

-751. 

CONVEYANCE.    See  Property. 

CORPORATIONS. 

Corporations  defined  and  classified, 
Chap.  II.,  Sec.  8,  on  p.  27. 

Creation,  and  several  kinds  of,  15. 

Creation  by  special  charter,  15. 

In  the  United  States  by  legislative 
enactment,  17. 

Of  the  power  of  Congress  to  create, 
18. 

Creation  by  general  incorporation 
acts,  20. 

Creation  by  implication,  21. 

What  words  sufficient  to  create  by 
implication,  21. 

Acceptance  of  charter  granted  by 
the  king,  15. 

Acceptance  not  necessary,  unless 
required,  23. 

When  required  to  be  created  by 
general  law,  26. 

Title  of  acts  or  charters  of  incorpora- 
tion, 28. 

Special  constitutional  provisions  as 
to  corporations,  24. 

Creation  and  grades  of  public  cor- 
porations, Chap.  III.,  Sec.  15. 

Public  and  private  corporations  dis- 
tinguished, Chap.  IV.,  Sec.  29. 

Public  and  private  corporations  de- 
fined, and  difference  stated,  29, 30. 

Difference  between  public  and  pri- 
vate corporations  illustrated^  31. 

Dissolution  of  municipal  corpora- 
tions, 109,  718. 

Name,  boundaries,  and  seal,  117. 

Officers  and  elections,  133. 

Corporate  meetings,  195. 

Corporate  records  and  documents, 
231. 

Municipal  ordinances  and  by-laws, 
243. 

Municipal  courts,  and  their  jurisdic- 
tion, 356. 

Contracts  of  municipal  corporations, 
370. 

Capacity  to  acquire  and  hold  prop- 
erty, 427,  et  seq. 

Power  of  Eminent  Domain  may  be 
delegated  to,  452,  et  seq. 

Rights  respecting  property  dedicated 
to  public  use,  489,  et  seq. . 

Relations  to  streets  and  public  places, 
516,  et  seq. 


Power  of  taxation  and  local  assess- 
ment, 586,  et  seq. 

Mandamus  to  compel  discharge  of 
duties,  661,  et  seq. 

Liability  on  contracts,  749-751. 

Liability  for  torts,  752-802. 

CORPORATE  BOUNDARIES.    See 
Boundaries. 

CORPORATE  MEETINGS.    See  title 
Meetings;  also,  Chap.  X.p.230,e*seg. 

CORPORATE  PROPERTY.  See  Prop- 
erty, Chap.  XV.  p.  415,  et  seq. 

CORPORATE  SEAL.    See  Seal. 
COST.  y 

Of  collecting  assessments  and  taxes, 
607. 

COUNCIL. 
Is  representative  body,  11,  16,  19, 

208,  712. 
How  elected,  134. 
Tribunal  td  decide  election  contests, 

139,  716. 
Represents  the  corporation  at  large, 

181,  208. 
Constitution  of  municipal  council, 

208,  700. 
When  mayor  integral  part,  198, 209. 
Right  of  mayor  to  preside,  210. 
Who  compose  the  council,  211,  212. 
When  mayor  a  member,  210,  211. 
Conflicting  councils  —  remedy,  213. 
Acts  ;of  de  facto  councils  valid,  214. 
Common  law  rules  as  to  quorums 

and  majorities,  215,  216. 
What  constitutes  a  quorum,  illus- 
trated, 217-219. 
When  majority  must  concur,  and 

may  bind,  220-222. 
Withdrawal  of  members  leaving  no 

quorum,  221,  222,  675. 
Adjournment  of  regular  meeting, 

225. 
Mode  of  proceeding  when  convened, 

226. 
Quorum  essential  to  valid  action,  230. 
Constitution  of,  in  England,  17,  n. 
Direction  of  mandamus  to,  701. 
Judgment  in  mandamus  against,  712. 

COUNTY.    See  Action;  Orders. 
How  distinguished  from  municipal 

corporation  proper,  p.  31,  n.,  10. 
Extent  of  legislative  power  over, 

34,  35. 
Limitations  on  legislative  power,  40. 
Grants  to  people  of,  Or  for  use  of, 

431,  443. 


INDEX. 


785 


COUNTY —Continued. 

County  and  city  as  tenants  in  com- 
mon, 433,  n. 

Grants  for  court  house,  443. 

Special  grant  for  court  house  and 
jail,  445,  n. 

Eights  in  public  squares,  508. 

Duty  as  respects  bridges,  579,  n.,  673, 
785. 

Mandamus  and  suits  in  favor  of  cred- 
ditors  of,  685,  686,  n. 

Civil  liability  of,  761,  762,  n.,  785, 

COURT  HOUSE.    See  County  ;  Dedi- 
cation ;  Public  Buildings. 

COURTS.    See  Municipal  Courts. 
CREATION. 
Of  corporations,  15,  et  seq. 

CREDITORS. 
Rights  of,  see  Chaps.  IV.,  XIV.,  XX. 
Repeal  of  charter  cannot  affect,  114. 
Mandamus  to  enforce  duties  towards, 
685,  et  *eqi 

CRIMINAL  OFFENCES. 
Ordinances  relating  to,  300, 361. 
Rescue  of  offenders,  336. 
Jurisdiction  of  corporation  courts 
over,  357,  361. 

CULVERT.    See  Streets. 
Power  to  make,  544.  , 

Liability  of  city  respecting';  see  Ac- 
tions. 

CURATIVE  ACTS. 
Validation  of  previous  corporate  acts 

and  by-laws,  46,  352. 
Of  defective  execution  of  powers,  46. 
Railroad  aid  subscriptions  Validated, 

424.  ' 

CURBSTONE. 
Power  to  pave  includes  power  to 
furnish,  636. 

CUSTOM.    See  Usage. 

DAMAGES.     See   Action;     Grade; 

Eminent  Domain  ;  Salary. 

Where'  property  is  taken  for  public 
use,  455-458. 

By  whom  assessed,  how '  assessed, 
and  amount,  472-482.         , 

Against  abutters  and  property  bene- 
fited, 481. 

Effect  of  consent  and  actual  receipt 
of  award  of,  458,  ri. 

Measure  of  damages  in  condemna- 
tion proceedings,  487, 488. 

99 


What  benefits  may  b&  considered, 

487,488. 
Measure  of,  in  civil  actions,  p.  750,  n., 

789,  n. 

DEBT. 

Enforcement  of  by-law  by  action  Of, 

341,  343. 
Enforcement  of  taxes  by  action  of, 

653; 

DEBTS.      See   Borrowing  ,  Money; 
Contracts  ;  Mandamus  ;  Taxation. 

DE  FACTO    OFFICER.    See   Acts  ; 
Officer. 

DECLARATION. 
Requisites  of,  to  enforce  ordinances, 
348. 

DEDICATION.    See  Streets. 

Of  property  to  public  use,  subject 
treated,  Chap.  XVII.,  489,  dseq. 

Importance  of  doctrine  of,  490. 

Statutory  and  common  law  de'dica- 
,  tions,  491,  492, 

Requisites,  and  effect  of  statutory 
dedication,  491. 

Authentication  of  maps,  plats,  etc., 
evidence  of,  491 ,  n. 

Proprietpr  may  make  limited  dedi- 
cation, 492; ' 

Reservation  of  mines  and  coal  de- 
posits, 492,  n. 

Dedications  vesting  the  fee  in  pub- 
lic, 491,  492. 

Common  law  dedication : — rationale 
and  requisites,  493-495. 

Leading  case  df  Cincinnati  v.  White, 
stated,  493,  494. 

Who  entitled,  control,  estoppel,  etc., 
494,  n.,  495/ rt; 

When  dedication  not  revocable,  494, 
495. 

Extent  of  dedication  as  respects 
donor,  496. 

Where  proprietor  retains  fee;  and 
effect  theieof,  496. 

When  abutter  owns  to  centre  of 
street,  496,  n. 

Dedications  bordering  on  navigable 
W'aters,  497. 

Who  may  dedicate — Intent — How 
established,  498,  499. 

Equitable  owner  may]  dedicate, 
491,  n. 

Remainder  man— Agent— Maimed 
Woman,  498,  n.    , 

Widow  not  dowable,  459,  498. 

Municipal  corporation  may  dedicate, 


786 


INDEX. 


DEDICATION — Continued. 

Intent  to  dedicate,  essential,  proof 
of,  499-502. 

Effect  of  user,  and  acquiescence,  500 
-502 

Effect  of  user  on  width  of  street,  502. 

Dedication  by  platting  and  sale  of 
lots,  503-504. 

Mode  of  platting  as  showing  dedica- 
tion, 504. 

Acceptance  by  public,  when  neces- 
sary, 505. 

How  established,  505. 

Dedication  for  charitable  and  public 
uses,  510. 

Alienation  and  use  of  public  prop- 
erty, 512. 

Power  of  legislature  over,  513. 

Reverter —Misuser — Remedy,  515. 

DEED.    See  Conveyance  ;  Property. 
DEFENCES. 

To  actions  to  enforce  ordinances, 

350-355. 
Inequitable  defences  may  be  taken 

away,  44.' 

DEFINITE    AND   INDEFINITE 
BODIES,  196-199. 

Mode  of  action,  215,  216.    ' 

DEFINITION. 
Of  a  municipal  corporation,  9,  p.  28. 

DELAY.    See  Injunction. 

Effect  on  right  to  mandamus,  696. 
Effect  on  right  to  injunction  and 
relief,  738,  n. 

DELEGATION  OF  POWER. 

To  municipal  authorities  valid,  245. 
By  municipal  authorities  invalid,  60. 
567,  618. 

DEMAND. 

When  necessary,  in  mandamus  pro- 
ceedings, 696. 

DETINUE. 

By  corporation  for  its  records,  239,  n. 

DEVISE. 
Power  of  corporation  to  take  by, 

436,  n. 
Devises   and   gifts   for   charitable 

uses,  436-443. 

DIRECTION  OF  WRIT.    See  Man- 
damus. 


DISCRETIONARY  POWERS.  See 
Actions;  Mandamus;  Mandatory 
Powers. 

Discretionary  and  mandatory;  dif- 
ference, 62,  669,  689,  753. 

DISFRANCHISEMENT  AND  AMO- 
TION. 

Subject  treated  (see  Office),  177. 

DISQUALIFICATION.  See  Elec- 
tion ;  Office  ;  Quo  Warranto. 

DISSOLUTION  OF  CORPORATION. 

How  municipal  corporation  dis- 
solved ;  in  England,  109. 

In  the  United  States,  110. 

Effect  of  dissolution,  113. 

Rights  of  creditors  on  dissolution, 
114. 

Change  of  powers,  name,  etc.,  with- 
out change  of  identity,  115. 

Change  of  corporate  boundaries,  1 26. 

Change  of  Boston  from  town  to  city 
organization  did  not  dissolve  the 
corporation,  431,  n.,  11. 

Quo  warranto,  where  corporation  is 
dissolved,  718. 

DISTRESS. 

Enforcement  of  by-laws  and  taxes 
by,  270,  656. 

DIVISION  OF  TOWNS.  See  Bounda- 
ries; Dissolution. 

Extent  of  legislative  power  over, 

37, 127. 
Legislature  may  dispose  of  property, 

128. 
Ownership  of  property  where  no 

legislative    disposition   is  made, 

128,  129. 
When  division  of  property  must  be 

made  by  the  legislature,  129. 
Apportionment  of  debts  on  division 

of   municipalities    or  change   of 

boundaries,  36,  44,  n.,  129. 
Ownership  of  ferry  on  division  of 

town,  80,  n. 
Change  of  town  into  city,  123,  n. 
Duties  enforced  by  mandamus,  667,  n. 

DOCKS.    See  Wharves. 


DOCUMENTS. 
Documents. 


See    Records   and 


DOGS.    See  Animals  ;  Fines. 

Power  to  impound,  etc.,  101,  279. 
Power  to  regulate  and  license,  292,  n. 


INDEX. 


787 


DOUBLE  OFFENCES.  See  Crimi- 
nal Offences. 

Single   offence    cannot    be    made 

double,  276. 
Punishment  by  the  state  and  by 

the  municipality,  300-302. 

DOWER. 
No  dower  in  lands  taken  or  dedi- 
cated for  public  use,  459,  498. 

DRAINS  AND  SEWERS.    See  Taxa- 
tion and  Local  Assessments. 
Land  may  be  condemned  for,  463. 
Power  to  make,  544,  644,  645. 
Cisterns  andjsewers  In  streets,  545. 
Power  to  regulate  use  and  to  pro- 
tect, 644. 
How  to  be  paid  for,  645-647.3 
Nature  of  power  to  construct,  33. 
Liability  in  respect  to,  801,  802. 

DRAYS.    See  Vehicles. 
Power  to  regulate,  license,  etc.,  293. 
Use  of  streets  by,  540 

DUTIES.    See  Action. 

Public  and  private,  distinguished, 
33,39,761-765. 

Neglect  of  corporate  duty,  when  ac- 
tionable, 761-802. 

EASEMENTS.  SeeJEMiNENT  Domain  ; 
Fee;  Streets. 

EGYPTIAN  CITIES. 

Historical  allusion  to,  p.  1. 
EJECTMENT. 

By  corporation,  to  recover  streets, 
1        &c,  523. 

By  abutter,  to  recover  public  places, 
524. 

ELECTIONS.  See  Chaps.  IX.  XX. 
XXI. —  Office  and  Officer;  Man- 
damus; Quo  Warranto. 

Subject  of  municipal  elections  treat- 
ed Chap.  IX.,  133,  etseq. 

Mandamus  as  respects  municipal 
elections,  674-683,  716. 

To  compel  delivery  of  officer's  com- 
mission, 671,  n. 

Election  after  the  charter  day,  674, 
675. 

Mandamus  to  compel  holding,  674, 
675, 695. 

Mandamus  to  compel  holding  of 
joint  meeting,  "675. 

Mandamusto  election  canvassers,676. 

Remedy  by  quo  warranto,  678-682, 
716. 


Decision  of  local  questions  by  vote 
of  people,  23. 

Tribunal  to  decide  contested  elec- 
tions, 139-144,  716. 

Canvasser's  powers  (see  Chaps.  IX. 

Elebtion  certificate,  effect  of,  716. 
Equity  jurisdiction  over  elections, 

210,  714. 
Certiorari  in  contested  election  cases, 

740. 

EMINENT  DOMAIN. 

Subject  treated  in  Chap.  XVI.,  452, 
et  seq. 

Definition  and  general  principles, 
452,453. 

Fifth  amendment  of  federal  consti- 
tution does  not  restrain  the  states 
(see  fourteenth  amendment),  454. 

Summary  of  usual  constitutional 
limitations  by  Mr.  Sedgwick,  455. 

Amount,  and  estate  in  lands,  which 
may  be  taken,  456-458. 

The  legislature  may  authorize  fee  to 
be  taken,  456. 

Amount  of  land  which  may  be 
taken,  457, 458. 

Effect  of  owner's  consent  and  ac- 
ceptance of  money,  458,  n. 

No  dower  in  dedicated  lands  and 
streets,  459. 

Land  can  be  taken  only  for  public 
use,  460. 

Individuals  may  contribute  towards 
expense,  461. 

Eminent  domain  to  procure  water, 
462. 

For  parks,  squares,  sewers,  &c,  463. 

Whether  for  ornamental  purposes, 
464. 

Who  decides  whether  the  specified 

■    use  is  public,  465. 

Mode  of  exercising  power;  neces- 
sity, 466. 

Power  delegated  to  municipal  cor- 

.    porations,  467. 

Power  should  be  strictly  construed 

,    ahii  use  specified,  468, 469. 

Costs  and  expenses,  by  whom  paid, 
468,  n. 

Conditions  precedent  must  be  com- 
plied with,  470. 

Defective  proceedings  and  effect, 
470. 

Disagreement  with  owner,  470. 

Notice  of  proceedings,  and  how 
given,  471. 

Qualifications  of  assessment  com- 
missioners, 472. 

Of  the  right  to  discontinue  pr  aban- 
don proceedings,  473-475. 


788 


WDEX. 


EMINENT  DOMAIN— Continued. 

Liability  for  unreasonable  delay, 
&c,  474,  475. 

Appeal — Certiorari — Equity  juris- 
diction, 476. 

Compensation  and  remedy  for,  477- 

"482'.      "" 

Assessment  of  benefits  against  abut- 
ters, 481,  590. 

Tribunal  to  determine  compensa- 
tion— jury,  482. 

Amount  of  damages,  hpw  and  by 
whom  estimated,  483-488. 

Public  use  by  "State"  and  "United 
States,"  461,  n. 

Power  to  set  aside  report  of  com- 
missioners, 473,  n. 

Compensation , to  abutter  on  streets 
for  use  by  railroads,  573. 

EMPLOYMENTS. 
Power  to  license,  regulate,  and  tax, 
291-296,' 624,  630-632. 

ENGINEER,  CITY. 

When  acts  of  are  binding  on  cor- 
poration, 776,  777. 

ENTERTAINMENTS. 

No  implied  power  to  furnish,  100. 
EQUITY.    See  Delay;  Injunction; 


Powers  in  respect  to  charitable 
trusts,  37,437,441. 

Cannot  relieve  against  valid  penal- 
ties and  forfeitures,  286,449. 

Discretionary  powers  not  controlla- 
ble by,  58. 

Jurisdiction  in  case  of  .conflicting 
councils,  213. 

-Over  public  nuisances,  309,  n.,  312,  n. 

Over  municipal  proceedings  to  open, 
&c.  streets,  476. 

Power  as  respects  public  squares, 
&c,  515. 

Obstructions  in  public  streets,  520, 
522. 

Enforcement  of  liens  for  taxes,  660. 

When  rnanda/mm,  and  not  bill  in 
equity,  is  the  proper  remedy,  664, 
693,  n. 

Jurisdiction  to  enforce  judgments 
against  corporation,  698,  n. 

Remedy  in,  to  restrain  illegal  cor- 
porate acts,  727-738. 

Remedy  in,  to  prevent  abuse  of  cor- 
porate powers,  730. 

Remedy  in,  to  prevent  cloud  on 
title,  738. 

ERROR.    See  Weh  of  Erbok. 


ESTOPPEL. 

Conveyance  may  operate  by  way  of, 

431,  n. 
Estoppel  as  respects  ownership  of 

property,  433,  h, 
As  respects  property  dedicated  to 

public  use,  495,  498. 
Equitable,  illustrationsof,  738,  n. 
No  estoppel  to  make  defence  of  ultra 

vires,  381,  749, 766. 

EVIDENCE.  See  Records  and  Doc- 
uments. 

Of  corporate  existence,  51. 

In  actions  against  public  .officers, 
176. 

Acts  and  declarations  of  officers, 
when  evidence;  resgestse,  176,  n. 

Proof  of  notice  to  corporation,  176. 

Corporate  records  and  documents  as 
evidence,  231. 

Admission  of  corporation  binding, 
242. 

But  corporator's  admission  not, 
242,  n. 

Admission  of  officer,  when  binding, 
242,  n. 

Proof  of  passage  of  ordinance,  247. 

Proof  of  publication  and  recording 
of  ordinances,  266-269,  n. 

Proof  of  resolutions,  269,  n. 

Proof  of  acts  of  board  of  health, 
305,  n. 

Judicial  notice  not  taken  of  ordi- 
nances, 346. 

Municipal  corporation  cannot  alter 
rules  of,  350. 

Proof  of  ordinances,  3,55. 

Proof  of  conveyances,  450,  n. 

Burden  of  proof  in  condemnation 
proceedings,  470. 

Authentication  of  town  plats,  490,  n. 

Proof  of  dedication  of  property  ,to 
public  use,  499. 

Declarations  of  owner  and  of  de- 
ceased surveyor,  499,  n. 

Intent  to  dedicate,  how  established, 
499. 

Parol  evidence  cannot  vary  effect  of 
recorded  plat,  499,  n. 

Effect  of  user  and  acquiescence,  :500 
-502. 

Mode  of  platting  as  evidence  of  ded- 
ication, 504. 

Municipal  tax  deeds  as  .evidence, 
658,  n. 

Election  certificate;  effect  of  as  evi- 
dence, 716. 

EXCLUSIVE  PRIVILEGES.  See 
Monopolies. 


•I«r(DlB-X . 


189 


EXECUTION.    See  Judgment  ;  -Man-  , 
DAMUS;  Property. 

EXEMPTION. 

Of  revenues  from  seizure,  64. 
Of  municipal  corporations  (from  gar- 
nishment, 65. 
Of  property  from  taxation,  .614-6,16.  j 

EXHIBITIONS. 
Power  to  license,  tax,  and  isegulate, ; 
294, 632. 

EXPULSION.    See  Amotion;  Offi- 
cer. 

Power  must  be  .strictly  pursued,  J83 
-185. 

EXTRA  PAY.    SefitGoMHAcosjjOF- 

FICER. 

PAKMING  LANDS. 
Taxation  of,  for  municipal  purposes, 
.633,634. 

FEDERAL  COURTS. 
Power  to  enforce  judgments  against 

municipalities,  .416,-  693. 
Power  to  issue  man&amu?  to  state  i 

officers,  692,  693. 
Power  to  appoint  special  cojmmdsr  : 

sioner  to  collect  taxes,  693. 
State  court  cannot  interefer-e  with, 

693,711. 

FEE.    See  Dedication  ;  Eminent  Do- 
main; Streets. 
Legislature  may  authorize  its  appro- 

priotion,  456. 
Dedication  of  fee  in  trust  .(seie  fifid-  t 

cation),  491,  496,  556. 
Dedication  of  easement,  492,  .557.. 
No  reverter  where  land  is  held  in  fee, 

456. 

FERRY  FRANCHISE, 
Legislature  may  repeal  the  grant  of 

a  ferry,  to  a  municipal  corporation, 

31. 
Such  grants  not  ordinarily  contracts, 

78: 

Extent  and   construotipn  of  such 

grants,  78. 
Power  to  license  ferries  construed,  , 

79. 
Power  to  lease  ferries  construed,  .80. 

FEUDAL  SYSTEM. 
Effect  on  towns,  4. 

FINES,   PENALTIES,    AND   FOR- 
FEITURES.   See  Penalties. 

Implied  power  to  annex  fine  orpe- 1 
cuniary  penalty,  270^272. 


;No  implied  power|to  Impose  forfeit- 
ure, .270-272. 

Charter  penalties  govern,  273,^274. 

Penalty  within  fixed  limits,  275. 

Single  offence  cannflt  be  made 
double,  ,276,  277- 

Power  of  forfeiture  must  be  express, 
279. 

Not  included  in  the  power  to  fine, 
280. 

Forfeiture  of  animals  at  large,"282- 
285. 

Efluity  will  not  relieye  against,  286. 

Power  to  imprison  must  be  express, 
287. 

Amount  of  fine,  271,  275,366. 

Mode  of  collecting  fines,  287. 

Actions  to  recover  v  fines  and  penal- 
ties, 341-343. 

Nature  of  proceeding,  civil  or  crim- 
inal, 344,  345. 

Requisites  of  .complaints,  347-349. 

Mode  of  procedure,  defences,  &c, 
350. 

In  what  name  enforced,  358. 

Illegal  fines,  when  recoverable  back, 
751. 

FIRE. 

Power  of  municipal  corporation  to 

prevent,  94. 
To  establish  fire  limits,  338. 
To   prevent    erection   of   wooden 

buildings,  338. 
Bequest  to  purchase  engine  valid, 

442,  n. 
Cisterns  in  public  streets,  545. 
Demolition  of  buildings  tofprevent, 

756-759. 
Liability  for  negligence  of  firemen, 

774. 

FORFEITURE.    See  Fines. 

Power  to  impose  must  be  express, 

270-286. 
Of . animajs  at.  large,  282, 
Of  charter,  109;  112,  729. 
Of  offices  (see  Qffice.8),  721,  n. 

FOURTH  OF  JULY. 

Corporation  cannot  appropriate 
money  to  celebrate,  100. 

FRANCHISES. 
Remedy  for  usurpation  of;  71*3,  el  seq. 

FRAUD.    See  Equjtx. 

FRQNTAGE, 
Assessments  on  basis  of,  valid,  596, 
et  seq. 


790 


INDEX. 


FUNDED  DEBT.   See  Sinking  Fund. 
What  is  a  funded  debt,  86,  n. 

FUNDS. 
Legislative  control  over,  35. 
Misappropriation  of,  restrained,  731, 
732. 

GAMING  HOUSES. 
Police  power  over,  309. 

GAENISHMENT. 
Whether \municipal  corporations  lia- 
ble to,  65. 

GAS  COMPANIES. 
Legislative  control  over,  and  right 

to  regulate  price  of  gas,  30,  549. 
When  power  to  regulate  may  be 

given  to  municipal  corporations, 

30. 
How  the  power  must  be  exercised, 

248. 
Gas  pipes  in  public  streets,  546. 
What  powers  may  be  granted  to, 

547-550. 
Taxation  of,  628. 
Nature  "of  power  to  light  city,  33. 

GENERAL     INCORPORATION 

ACTS. 

English  reform  act  of  1835,  p.  46, 
Sec.  16. 

In  the  United  States,  p.  57,  Sec.  20. 

Advantages  over  special  charters,  p. 
58,  Sec.  20. 

Constitutional  provisions  respect- 
ing, p.  65,  Sec.  24. 

Constitutional  provisions  respect- 
ing, p.  67,  Sec.  26. 

GENERAL  LAWS. 
When  controlled  by  special  legisla- 
tion, p.  100,  Sec.  54,  614. 

GENERAL  WELFARE  CLAUSE. 

In  charters,  what  may  be  done  un- 
der, 327-340. 

Power  to  order  destruction  of  liquor, 
371,  n. 

GIFTS. 

To  corporations  upon  charitable 
trusts,  valid,  436-443. 

GIRARD'S  WILL.  See  Teustres  and 
Trust  Property. 

Devise  to  Philadelphia,  in  trust,  to 
establish  college  for  indigent 
boys,  sustained,  438. 


GOOD  ORDER. 
Power  to  maintain,  329-332. 
Power  to  destroy  intoxicating  liq- 
uor, 371,  n. 

GOVERNOR. 

Of  a  state,  mandamus  to,  671. 
GRADE— GRADING.    See  Streets. 
Power  to  graduate  streets,  542. 
Is  a  continuing  powe  ,  543,  782. 
Grade  may  be  changed,  542,  543, 

782. 
Right  to  the  dirt  and  materials,  544, 
When  grade  fixed,  619,  n. 
Power  to  pave  includes   grading, 

636. 
No  liability  for  change  of  grade,  782. 

783. 

GRANTS.    See  Charter;   Constitu- 
tional Provisions. 
Of  powers  to  municipalities,  under 
legislative  control,  29,  et  seq. 

GRAVE  YARD.    See  Cemetery. 

GRECIAN  CITIES. 

Historical  view,  2. 
GUNPOWDER. 

Power  to  regulate  keeping  and  sale, 
337. 

GUTTERS.    See  Streets;  Taxation. 
Object,  to  carry  surface  water,  539. 
Municipal  control  over  use  of,  539. 

HARBOR.    See  Wharf. 
Harbor    regulations,    when    valid, 
67,  n. 

HEALTH. 
Power  to  preserve,  93,  95. 
Ordinance  respecting,  303. 
Power  with   respect   to  hospitals, 

305,  J75. 
Boards  of  health,  powers  of,  305,  n. 
Cemeteries  and  burials,  306,  307. 
Nuisances,  power  over,  308-312. 

HIGHWAYS.    See  Eminent  Domain  ; 
Roads;  Streets. 

Defective   highways,   liability  for, 
785,  et  seq. 

HISTORICAL  VIEW. 
Of  towns  and  cities,  Introduction. 
Of  capacity  of  corporations  in  re- 
spect to  property,  427. 

HOISTWAYS.         ' 
In  stores,  power  to  require  to  be 
enclosed,  339. 


IJSTDEX. 


791 


HOLDING  OVER.     See  Election; 
Office;  Mandamus. 
Eight  of  officers  to  hold  over,  156, 
674,  675. 

HOMESTEAD      EXEMPTION 
RIGHT. 

Effect  of  extension  of  corporate  lim- 
its, 126,  n. 

HORSE    RAILWAYS.     See    Chap. 
XVIIL,  on  Streets. 
Taxation  of,  293, 628. 
Municipal  control   and  legislative 

power  over,  566-578. 
Rights  and  liabilities  of  company, 

572. 
Right  to  occupy  public  streets,  566, 

578. 

HOSPITAL.     See    Health;   Ordi- 
nances. 

Ordinances  relating  to,  303,  305. 
Liability  for  negligence  of  officers 
of,  775. 

HOUSE  OF  ILL-  FAME.    See  Bawdy 
Houses;  Ordinances. 

HUCKSTER. 

Defined,  251,  n. 
ILLEGAL  CONTRACTS. 

Not  binding,  372. 
ILLEGAL  CORPORATE  ACTS. 

Remedy  against,  Chap.  XXIII.,  727, 
etseq. 

ILLEGAL  TAXES.    See  Taxation. 

Action  to  recover  back,  751. 
ILL-FAME. 

Houses  of,  power  over,  310,  364. 

ILLINOIS. 
Constitutional  provision  forbidding 
special  charters,  24,  n. 

IMPLICATION. 

Repeals  by,  not  favored,  54,  n. 

Corporations  may  be  created  by;  21. 

What  words  sufficient  to  create  cor- 
poration, 21. 

No  particular  form  of  words  neces- 
sary, 22. 

Legislative  grant  gives  capacity  to 
hold  the  thing  granted,  22,  431. 

IMPLIED    CONTRACTS.     See   Ac- 
tion; Contracts. 

When  and  how  deducible,  383,  750, 
751. 


IMPOUNDING  ANIMALS. 

Power  must  be  strictly  pursued,  101. 
IMPRISONMENT. 

Power  to  enforce  ordinances  by,  287. 

IMPROVEMENTS.  See  Local  Im- 
provements; Streets;  Taxation. 

INCOMPATIBLE  OFFICE. 

What  is,  and  effect  of  taking,  164- 
166. 

INCORPORATIONS.  See  Charter; 
Corporations  ;  Municipal  Corpora- 
tions. 

INDEMNIFICATION  OF  OFFI- 
CERS. 

When  municipal  corporation  may 
indemnify  its  officers,  98,  372,  n. 

INDIANA. 

General  cities  act  valid,  20,  n. 
INDICTMENT. 

Of  public  corporate  officers,  176,  n. 
p.  212. 

For  obstruction  to  street,  695,  n. 

Of  municipal  corporations,  745,^747. 

INDICTABLE  OFFENCES. 

Ordinances  relating  to,  300, 361. 
INDORSER. 

Of  corporation  orders,  liability  of, 
408. 

INFERIOR  COURTS.  See  Munici- 
pal Courts. 

INFORMATION.     See   Mandamus; 
!jj  jQuo  Warranto. 

INJUNCTION.  See  Delay;  Equity. 
Discretionary  powers  not  ordinarily 

controlled  by,  58. 
In  case  of  conflicting  councils  and 

election  contests,  213,  679,  n. 
Courts  will  not  enjoin  the  passing 

of  ordinances,  245,  n. 
In  cases  of  nuisances,  309,  522. 
In  cases  of  unauthorized  acts,  476. 
Unauthorized   use  of  streets  and 

public  places,  520,  561,  564,  n. 
Effect  of  acquiescence  and  delay, 

738,  n. 
How  it  differs  from  mandamus,  664, 

666,  n. 
Holding  election  will   not  be  re- 

fit t*3 i n f*(i   714 
Right  of  tax-payers  to  apply  for,  731 

-736. 
Right  to  restrain  illegal  taxes  and 

assessments,  737, 738. 


792' 


INDEX.; 


INSPECTION. 

Of  corporate  documents  and  papers, 

240. 
Who  entitled  to,  and  proceedings, 

240. 
Inspection  ordinances,  264. 
Mandamus' to  compel,  684i 

INTEGRAL  PARTS. 

lici  English  municipal'  cOrporalioris, 
how  constituted,  16,  700. 

Mayor  an  integral  part,  i98: 

Mayor's  presence  necessary  tovalid 
corporate  action,  198." 

Dissolution  by  loss  of  integral  part; 
109. 

INTEREST. 
On  corporate  indebtedness,  414. 

INTERNAL  IMPROVEMENTS.  See 
Charter;  Constitutional  Pro  vis- 
ions; Contracts;  Railroads. 

INTOXICATING  LIQUORS. 

Power  to  license,  regulate,  and  tax, 
297-299,  609,  n. 
Power  to  destroy,  371,  n. 

INTRODUCTORY  HISTORICAL 
VIEW,  l,etseg. 

INTRUDER.  See  Chap.  XXL,  on 
Quo  Warranto. 

Liability  of,  to  officer  de  juris,  174,  n. 
p.  209. 

IOWA: 
General  Municipal'  Corporation :  act 
of,  20,  n.,  24,  n. 

IRREPEALABLE  ORDINANCES. 
Surrendering  public  powers,  void, 
61,566,567. 

ITALIAN  CITIES. 
In  the  middle  ages,  Sec.  5,  p.  £ 

JAIL.  See  County';  Public  Build- 
ings. 

JEOFAIL.    See  Amendment. 

JOURNAL.  See  Records  and'  Docu- 
ments. 

JUDGE. 

In  corporation  court,  360.- 
JUDICIAL  NOTICE. 

Taken  of  charters,  50. 

Not  of  ordinances,  346. 


JUDGMENTS;    See  EebebAl  Ctiust '■; . 
Mandamus. 

Mode' of  enforcement  against?  mu- 
nicipal corporations,  446;  686, 698,  n. 
Sale  of  property  on  execution,  446,. 

686,  n. 
Lien  of,  on  corporate  real  estate,  446. 
Enforcement  of;  .by  rhandamw  and 

execution,  686-693. 
In  mandamus,  form  and  effect,,  712-.- 
In  quo  warranto,  725.. 
Relief  against  fraudulent  judgment, 

734.  ' 

JURISDICTION.  See-  Municipal 
Courts. 

Of  superior  courts  over  elections, 
14-1,  674;  715J 

JURY. 

Whether'municipaTcorporationsare' 
within  constitutional  guaranty  of 
right  to  jury  trial,  39,  ri.,  44,  n; 

Summary  convictionswithout,  when 
valid,  345,  361. 

Right  of  trial  by,  in  municipal  or 
police  courts,  36i- 366. 

Trial  by,  if  given  On  appeal,  367. 

Assessment  of  damages  by,  ini  pro- 
ceedings under  power  of  eminent 
domain,  482-485. 

JUST  COMPENSATION.  See  Emi- 
nent Domain. 

LACHES.    See  De-lay. 

LANDING.    See  Wharf. 

Dedication  of  property  for,..  511; 

LANDS.    See  Property. 

LEASE. 

Power  to  lease  property,  and- mode, 
449. 

LEGISLATIVE  AUTHORITY.  See 
Charter;  Constitutional  Provis- 
ions. 

Its  extent  and  limitation's  as-' re- 
spects'  municipal  corporation's, 
Chapi;  IV.  Sec.  29;  .p.  70,  et  seq. 

LEGISLATIVE  MOTIVES. 

Not  inquirable  into  by  the- courts, 
248,  n. 

Whether  applicable  to  acts  of -mu- 
nicipal bodies,  248: 

LIABILITIES;  See  Action  ;  Dtrnii*;  ■■ 
Officers. 

Liability  upon-  contract's;  749  -  751; 
Liability  for  torts,  752-802. 


INDEX. 


793 


LICENSES. 

Legislative    control    over    charter 
powers  in  respect  to,  35. 
i ,  Power  to  license  ferries  construed, 
.79. 

Power  to  ordain  forfeiture  of,  280. 

Nature  of  license  power,  291. 

Distinction  between  power  to  "li- 
cense "  and  to  "  tax,"  291  -  295, 609. 

Suit  to  enforce  penalty,  350. 

State  law  and  charter  provisions 
respecting,  53. 

Illegal  license  tax,  recovery  back, 
751. 

Licensees  not  corporate  agents,  755. 

LIEN. 

Of  judgment  on  real  estate  of  mu- 
nicipality, 446. 

Of  taxes  and  assessments,  and  how 
enforced,  659,  660. 

Legislative  power  to  provide  for  as- 
sessments, 45,  n. 

LIMITATION  OF  ACTIONS. 
On  coupons  and  bonds,  406,  n. 
On    ordinary  warrants    or  orders, 

412,  n. 
Adverse  possession  against  public 

corporations,  433,  n.,  528. 
When  municipal  corporations  bound 

by,  529. 
In  mandamus  proceedings,  694,  n. 

LIMITATION  ON  INDEBTEDNESS. 
Construction    of   special   constitu- 
tional and  charter  provisions;  85. 
Limitation  on  taxation,  107. 
Remedy  to  enforce  limitation,  733. 

LIMITATIONS  ON  LEGISLATIVE 
POWER. 

Over  municipal  corporations,  p.  70, 
Sec.  29,  et  seq. 

LIQUORS. 
Power  to  regulate,  license,  etc.,  297 

-299. 
Power  to  destroy,  371,  n. 

LOCAL    ASSESSMENTS.      Seie 
Streets;  Taxation. 
Subject  treated,  Chap.  XIX.,  586, 
etseq. 

LOCAL   COURTS.     See   Municipal 
Courts. 

LOCAL  IMPROVEMENTS.    See 
Taxation. 

Contracts  for,  rights  of  contractor, 
400-402. 

100 


Local  assessments  for  (see  Taxation). 

1 586,  et  seq. 
Mandamus   to  compel   making  of 

667,  n. 
Certiorari  to  revise  proceedings  for 

740.  s 

LONDON. 

Case  of  the  city  of,  8,  720. 
LOWEST  BIDDER.    See  Contracts. 
Provision  requiring  contracts  to  be 

let  to,  388,  791,  n. 
Mandamus  in  favor  of,  669,  n. 

MAINE. 

Towns  in.  See  Towns  in  J?ew  Eng- 
land. 

MACADAMIZING.    See  Paving. 

What  confers  power  and  what  it 
includes,  636. 

MAJORITY.    See  Committee;  Meet- 
ings; Quorum. 

MANDAMUS.    (See  Chap.  XX.  on 
Mandamus.) 

Proper  remedy  to   obtain   official 

books,  &c,  239. 
Validity    of  ordinances  tested  in, 

353. 
Use  of  this  remedy  by  the  federal 

courts,  416. 
To  collect  street  assessments,  474, 

479. 
Subject  treated,  618,  et  seq. 
Definition,  nature,  and  functions  of 

writ,  662-664. 
How  it  differs  from  injunction,  664. 
When  granted  or  refused,  665-668. 
Mandatory  and  discretionary  pow- 
ers, 669-673. 
Writ  as  respects  elections  and  offi- 
cers, 674-683. 
When  title  to  office  may  be  settled 

in,  678-683,  716. 
To  compel  officers  to  serve,  677. 
To  admit  to  office,  678-682 
To  restore  to  office,  683. 
To  compel  delivery  and  inspection 

of  books  and  papers,  684. 
To  enforce  duties  towards  creditors, 

685-693. 
By  levy  and  collection  of  taxes,  685, 

et  seq. 
When  creditor  must  have  judgment, 

686,  688. 
Judgment    necessary     in    federal 

courts,  692,  693. 
To  compel  levy  after  regular  time, 

690. 


794 


INDEX. 


MANDAMUS  ->-  Continued. 

Personal  liability  of  ministerial  offi- 
cers, 691. ' 

"When  state  may  apply  for  writ,  695. 

When  individuals  may,  695. 

Who  may  be  a  relator,  695,  n. 
.    Demand,  and  what  will  excuse,  696* 

Rule  nisi,  or  notice,  dispensed  with, 
697. 

Form,  direction,  and  service  of  writ, 
698,  et  seq. 

Return  and  subsequent  proceed- 
ings 705,  706. 

Peremptory  writ,  707,  708. 

Attachment  to  enforce  obedience, 

.  709-711. 

Judgment  in,  712. 

Appeal  and  supersedeas,  712,  n. 

State  courts  -cannot  Interfere  with 
federal  courts,  693,  711. 

Right  of  corporation  to  appeal, 
712,  n. 

MANDATORY  AND  DISCRETION- 
ARY POWERS,  58,  62,  669,  689, 
753. 

MANUFACTURING   COMPANY. 
No  implied  power  in  municipality 
to  aid,  106. 

MARKETS. 

Power  to  build,  establish,  and  regu- 
late, 313-318. 

Special  powers  in  relation  to,  con- 
strued, 319-325. 

Power  to  purchase  land,  and  aban- 
don, and  change,  315,  317. 

How  fai;  sales  elsewhere  may  be 
prohibited,  319. 

Cannot  be  built  in  street,  316,  521. 

Inspection  ordinances,  323^ 

Power  to  purchase  site  for  maiket- 
house,  432. 

Property  dedicated  for,  510. 

MASSACHUSETTS.  See  Towns  in 
New  England. 

Statutory     provisions     lespecting 
-towns,  p.  34,  n. 

MASTER  AND  SERVANT.  See  Res- 
pondeat SUPERIOR. 

MAYOR.    (See  Chaps.  IX.,  X.) 
Should  have  more  power  and  res- 
ponsibility, 9  (on  p,  23). 
An  integral  part  of  an  old  English 
corporation,  16, 198. 
•    Nature  and  antiquity  of  office,  147- 
148. 
Powers  and  duties  of,  147. 


When  mayor's  presence  at  corpo- 
rate meeting  is  necessary,  198, 209. 

His  right  and  duty  to  preside  (see 
Presiding  Officer),  210. 

Approval  by  him  of  proceedings  of 
council,  209,  n. 

His  presence  when  an  integral  part 
of  special  body,  191,  n. 

When  a  member  of  the  conncil,  210 
-211. 

Signing  of  ordinances  by,  265. 

Judicial  power  of  mayor,  358,  n., . 
362,n. 

Deed  by  mayor  pro  tern ,  450,  n. 

Notice  to,  when  sufficient,  p.  211,  n., 
Sec.  176,  n. 

McDONOUGH'S  WILL.    See  Tbus- 


For  education  of  poor  in  New  Or- 
leans and  Baltimore,  sustained, 
439. 

McMICKEN'S  WILL. 
Similar  devise  sustained,  440. 

MEETINGS,  CORPORATE, 

Requisites  of  valid  corporate  meet- 
ing, 196-199. 
Notice  of  corporate  meetings,  200. 

To  whoiri  and  how  given,  201. 

Requisites  of  notice,  202-203, 
New  England  town  meetings,  11, 
204. 

Requisites  of  notice,  204-207. 

Power  to  adjourn,  207. 
Constitution  and  meetings  of  coun- 
cils, 208,  701,  n. 

Mayor  and  his  right  to  preside, 
208-210. 

Who  compose  the  Council,  211. 

Two  conflicting  councils,  remedy, 

Acts  of  de  facto  officers  valid,  214. 

Majority  where  the  body  is  indefi- 
nite, 215. 

Majority  and  quorum  of  definite 
body,  216-221. 

Concurrence  "Of  integral  parts,  222, 
675,  701. 

Regular  or  stated  meetings,  223,  690. 

Special  meetings,  224. 

Adjourned  meetings,  225. 

Mode  of  proceeding  when  convened, 
226-230. 

Concurrence  of  the  two  boards,  226, 

..  675,k701. 

Majority  may  repeal  two-thirds 
rule,  226,  n. 

Power  to  act  through  committee, 
227. 


INDEX. 


T95 


MEETINGS,     CORPORATE  — Con- 
tinued. 
Power   of  council    to    reconsider 

votes,  228. 
Ayes  and  nays,  calling  when  requi- 
site, 229,  374,  n 
Quorum  of  definite  body  essential, 
230. 

MICHIGAN. 
Constitutional  provision  as  to  mu- 
nicipal officers,  Sec.  33,  p.  76. 

MISSOURI. 
General   Municipal    Incorporation 
Act,  20,  n.,  24,  n. 

MOB. 
Liability  for  property  destroyed  by, 
790. 

MONOPOLIES. 
No  implied  power  to  create,  296. 
In  favor  of  gas  company,  548, 549, 

MORAL  OBLIGATION. 
Power  to  enforce,  Sec.  44,  p.  96. 

MORTGAGE. 

Power  to  mortgage  and  pledge  pro- 
perty, 448. 

Mortgage  to  secure  railway  aid 
bonds,  448. 

MORTMAIN. 
Statutes  of,  nqt  generally  in  force,  in 
this,  cquntry,  432. 

MOTIVES.     See   Legislative    Mp- 

TIVHS. 

MULLANPHY'S  WILL. 

Establishing  charity  in  St.  Lpuis,sus- 
tained,  441.  , 

MUNICIPAL   ASSEMBLIES.      See 
Chap.  X.  Sec,  195. 

MUNICIPAL  BOUNDARIES.      See 
Chap.  VIII. 

MUNICIPAL   CHARTERS.    See 
Chap;  V.  Sec.  48. 

MUNICIPAL  CORPORATIONS.  See 
Charter  ;  Corporations. 

Defined  and  classified,  9  (p.  28). 
How    distinguished   from   private 

corporations,  10  (p.  30). 
Distinction  between  municipal  and 

quad  corporations,  10  (p.  30). 
How  created  in  the  United  States — 

legislative  sanction  essential,  17. 


May  exist  by  prescription  in  Eng- 
land, 15.       i. ,. 

May  exist  by  prescription  in  the 
United  States,.  17. 

Power  of  congress  to  create  corpo- 
rations, 18. 

Power  of  territorial  legislatures  to 
create  corporations,  18. 

Powers  of.  (See  Charter;  Contracts,- 
Ordinances;  Property;  Streets;  &c.) 

Evils  attending  municipal  adminis- 
tration, p.  21,  Sec.  9. 

Remedy  suggested,  p.  22,  Sec.  9. 

MUNICIPAL  CORPORATIONS  RE- 
FORM ACT  IN  ENGLAND,  8. 

The  abuses  and  misrule  which  led 

to  its  enactment,  16. 
Summary  of  ite;  leading  provisions, 

16. 

MUNICIPAL  ELECTIONS  AND  OF  - 
FICERS. 
Subject  treated,  Chap.  IX.  See.  133. 

MUNICIPAL  INSTITUTIONS.  His- 
torical View,  1. 
In  Greece,  2; 
In  Rome,  3. 
In  France,  6. 
In  Spain,  7. 
In  England,  8. 
In  America,  9,  24,,  n. 
Evils  of  municipal  rule,  91  (p.  17). 
Suggestions  for  reform,  9  (p.  17). 

MUNICIPAL  MEETINGS.  See  Chap; 
X.  Sec.  195. 

MUNICIPAL  COURTS. 

In  England',  and  at  common  law, 

356. 
Limited  nature  of  powers  of,  356. 
Treated  as  the  tribunals  of  the  cor- 
.    poration,  356. 

American  corporation  courts*  357. 
Constitutional'  provisions  touching 

the  powers  and  jurisdiction  of, 

357-358. 
Criminal  jurisdiction  of,  302,  358. 
What  jurisdiction  may  be  conferred 

on,  359. 
Citizens   competent  judges,  jurors, 

and  witnesses,  360. 
Summary  proceedings,  when  valid, 

361-366. 
Review  of  proceedings,  and  mode, 

368,  740. 
Civil  jurisdiction  of,  369. 
Limited  powers  of,  observations  of 

Campbell,  J.,  368. 


796 


INDEX. 


MUNICIPIA. 
In  Ancient  Rome,  3. 

NAME.  See  Chap.  VIII.  on  Coepo- 
eate  Name,  &c,  117. 

Corporate  name  may  be  changed, 
115,  118. 

Corporate  name  essential,  117. 

Corporate  name,  how  given  or  ac- 
quired, 117. 

Name  under  English  Municipal 
Corporations  Act,  118. 

Name  prescribed  by  charter,  119. 

Name  by  reputation,  120. 

Effect  of  misnomer  in  grants,  &c, 
121. 

In  what  name  to  sue  and  be  sued, 
123,  176,  n. 

In  what  name  to  enforce  ordinances, 
349,  358,  n. 

Grants  to  and  by  corporation  in  the 
corporate  name,  431,  450. 

Mandamus,  in  what  name  to  be  di- 
rected, 699-702. 

Suits  by  officers,  in  what  name, 
176,  n, 

Suits  to  prevent  illegal  corporate 
acts,  in  whose  name,  729,  730. 

NAVIGATION.  See  Public  Land- 
ing ;  Whabves  ; 

NEGLIGENCE. 
When  municipal  corporation  is  lia- 
ble for  (see  Actions),  761-766,  779. 

NEGOTIABLE  PAPER.  See  Bonds; 
Conteacts  ;  Oedees  ;  Raileoads  ; 
Mandamus. 

Power  of  municipal  corporations  to 
issue,  81,  82, 104,  404. 

NEW  ENGLAND  TOWNS. 

Their  number,  and  freedom,  9(p.  17). 

Their  peculiar  and  distinctive  char- 
acter, 11  (p.  34). 

Limited  power  to  control  and  raise 
money,  12,  13. 

Powers  and  duties  of  selectmen,  13. 

Town  meetings  in  New  England, 
204. 

Notice  of,  and  requisites,  205. 

Power  to  adjourn,  207. 

When  liable  for  neglect  of  public 
duty,  761,  et  seq. 

Liability  for  defective  highways, 
786-788.  ^ 

NEW  YORK. 
Organization  and  powers  of  towns 
in,  p.  59,  n.,  Sec.  20,  n. 


NICHOLSON  PAVEMENT. 
Power  to  contract  for,  389. 

NON-RESIDENT. 

Whether  eligible  to  corporate  of- 
fice, 134. 

Discriminating  taxes  against  void, 
591,  631. 

NORTH  CAROLINA. 

Organization  of  towns  in,  p.  59,  Sec. 
20,  n. 

NOTICE. 

Charters  judicially  noticed,  50. 

Notice  to  officer  of  his  amotion,  174. 

Notice  to  corporation  thrcmgh  its 
officers,  176,  n.,  on  p.  211. 

Notice  to  officer  of  proceedings  to 
amove,  187-192. 

Notice  of  corporate  meetings,  200, 
207. 

Notice  of  New  England  town  meet- 
ings, 204. 

Under  English  Municipal  Corpora- 
tions Act,  203. 

Notice  to  appear  before  committee, 
227. 

Council  bound  by  notice  to  previous 
council,  226. 

Notice  to  corporator  or  member, 
effect,  242,  n. 

Notice  to  owner  of  offending  ani- 
mals, 282-284. 

Of  ordinances,  290,  349. 

Of  proceedings  to  open  streets,  &c, 
471. 

Of  local  improvements  and  assess- 
ments, 642,  643. 

In  application  for  mandamus,  697, 
712. 

When  notice  binds  official  success- 
or, 712. 

Notice  of  defective  streets,  790,  795. 

NUISANCES.     See   Oedinances; 
Streets. 

Power  to  prevent  and  abate,  308- 

312. 
Construction  of  this  power,  308-312. 
What  are  nuisances,  308. 
Mode  of  abatement,  312. 
Power  of  legislature   to  authorize 

city  to  acquire  lands  to  be  raised 

and  drained,  456. 
In  streets,   and  remedy,   519,  538, 

581,  794. 
In  gutters,  539. 
Liability  of  author  of  nuisance,  794, 

795. 


INDEX. 


797 


OATH  AND  BOND  OF  OFFICE. 
Power  to  require  oath  and  bond, 

153. 
When  necessary  for   the  officer's 

protection,  154. 
Official  bonds,  when  valid,  155. 
Mandamus  to  compel  council  to  act, 

153,  n. 

OBLIGATION  OF  CONTRACT.    See 

Constitutional  Provisions;    Con- 
tracts. 

OBSTRUCTION. 
To  navigation,  311. 
To  streets  (see  Streets),  519,  et  seq. 

OCCUPATIONS.    See  Taxation. 
Power  to  license,  regulate,  and  tax, 

291—296 
Power  to  tax,  624,  630. 

OFFENCES. 
Power  to  enact  ordinances  relating 

to  public  offences,  300,  361. 
Rescue  of  municipal  offenders,  336. 

OFFICE  AND  OFFICER.    See  Chap. 
IX.  on  Municipal  Elections  and 
Officers,  p.  174. 
As  to  head  executive  officer  (see 

Mayor). 
Extent  of  legislative  authority  over 
municipal  offices  and  officers,  33, 
168. 
Distinction  between  state    officers 

and  municipal  officers,  33. 
Police  officers  are  state  officers,  and 

not  municipal,  33,  34. 
Water  and  sewer  commissioners  are 
_  municipal  officers,  33, 802. 
Mode  of  electing  and  appointing 

municipal  officers,  33. 
Constitution  of  Michigan  construed, 

33. 
Mode  of  appointing  police  officers, 

34. 
When  tiity  or  town  may  indemnify 

its  officers,  98,  99. 
Municipal  Popular  Elections,  134. 
Elections  usually  by  ballot,  134. 
Residence   usually    required    to 
give  right  to  vote,  134. 
Choice  of  disqualified  person,  135. 
Unauthorized  elections,  136. 
Courts  anxious  to  sustain  popular 

will,  136, 137. 
What  will  vitiate  an  election,  138. 
Special  Tribunal  to  decide  Election 
Contests,  139. 
Such  tribunal  constitutional,  139. 


Effect  on  jurisdiction  of  the  Superi- 
or Courts,  141-144. 
Power  to  create  and  appoint  offi- 
cers, 145, 146. 
Mayor,  antiquity  and  nature  of  of- 
fice of,  147, 148. 
Police  officer,  not  known  to   the 

common  law,  149. 

Nature  of  powers  and  duties,  149. 

Power  to  arrest  on  view,  150. 
Mode  of  election  and  appointment 

of  officers,  151. 
Presumption  of  regularity,  152. 
Oath  and  official  bond  and  sureties, 

153. 
Duration  of  official  term,  156. 
Right  to  hold  over,  156-160. 
Vacancies  in  offices,  161. 
Refusal  to  serve  in  office,  162. 
Resignation   of  municipal   offices, 

163. 
Acceptance  of  incompatible  office, 

164. 
Vacation  by  abandonment,  167. 
Compensation  of  municipal  officers, 

168. 
Power  of   corporation    to  fix  and 

change,  168-171. 
Additional  or  extra  compensation, 

when,  172, 173. 
Liability  of  the  corporation  to  the 

officer,  174,  668. 
Liability  of  officer,  cases  cited,  175, 

176. 
Amotion  and  Disfranchisement,  177. 

Difference  between  the  two,  177. 

When  power  of  disfranchisement 
exists,  178. 

Power  to  amove  officer,  180, 181. 
Mode  of  exercising  power  to  amove, 

and  proceedings,  183-194. 
Power  of  public  officers  to  sue,  176. 
Cases   relating   to   the  liability  of 

public  officers  cited,  176,  n. 
For  moneys  received,  176,  n. 
On  contracts,  176,  n. 
Tax  collector's  liability,  176,  n. 
For  acts  of  subordinates,  176,  n. 
For  acts  judicial  in  their  nature,  176, 

note. 
For  torts,  176,  n. 

Right  of  clerk  to  amend  record,  232. 
Contracts  with  officers,  371,  n. 
Indemnifying  its  officers,  98,  372,  n. 
Costs  of  collecting  assessments  and 

taxes,  607. 
Mandamus  to  municipal  officers  (see 

Mandamus),  661,  et  seq. 
To  settle  title  to  office,  678,  et  seq. 
Mandamus  to  compel  payment   of 

salary  to  officers,  668. 


798 


INDEX. 


OFFICE  AND  OFFICE|K— Con- 
tinued. , 

Personal  liability  of  public  officers, 
176,  n,;  691,  730,  n. 

Usurpations  of  munipipal  offices, 
remedy,  713,  et  seq. 

Judgment  in  mcmdamus  against  of- 
ficer, 712. 

Notice,  when  binding  on  official  suc- 
cessors, 712. 

Quo  warranto  to  test  title  to  office, 
716. 

Proof  of  official  character,  176,  n.,  p. 
211. 

Acts  and  declarations  of  officers ^as 
evidence,  176,  n.,  p.  211. 

Personal  liability  of  public  officers, 
176,  n.,  p.  212, 

Tax  collector's  liability,  176,  n.,  p. 
213. 

Torts  of  officers,  when  binding  on 
corporation,  766,  772-778. 

OHIO. 

General  Municipal  Incorporation 
Act  of,  vp.  58,  n..  Sec.  20,  n. 

Constitutional  provision,  p.  66,  n., 
Sec.  24,  n. 

OMNIBUSES. 
Regulation  of,  &c,  293,  326. 

OPENING  STREETS.  See  Eminemt 
Domain  ;   Stkeets  ;   Taxation   and 

Assessments. 

Proceedings  in,  how  revised,  740. 
ORDERS  OR  WARRANTS. 
Nature  of  ordinary  warrants,  power 

to  issue,  406, 
Liability  of  indorser  of,  4.08. 
Defences  to,  and   cancellation   pf, 

406,  412. 
Payable  out  of  a  particular,  fund, 

413,  686,  n. 

Interest    on,     when    recoverable, 

414,  n. 

Cancellation  and  payment  of,  40E|, 
Remedy  of  holder , of,  410,  68^,  n, ' 
Mode  of  drawing,  373. 

ORDINANCES  OR  BY-LAWS.  See 
Chap.  XII.  p.  270. 

"  By-Law  "  and  "  Ordinance  "  equiv- 
alent' words,  244,  300. 

Ordinance  defined,  244. 

Resolutions  and  ordinances  discrim- 
inated, 244,  n. 

Power  to  adopt  and  mode  of  exer- 
cising it,  245. 

Ordinances  have  the  force  of  laws, 
245. 


Must  be  passed  by  proper   body, 

246. 
Proof  of  adoption,  or  passage   of, 

247. 
Inquiry  into  motives  of  council  in 

passing*  248. 
Repeal  of,  and  effect,  249. 
Mode  of  conferring  power  to-  pass, 

250. 
Construction  of  grants  of  authority, 

250. 
Ordinance  cannot  change  charter, 
251,620, 
"       need  not  recite  authori- 
ty, 252. 
"        must  be  reasonable  and 

lawful,  25,3, 
"       must  not  be  oppressive, 

254. 
"        must  be  impartial  and 

general,  256; 
"       may  regulate,  not.  resr 

train,  trade,  257. 
"       must    not    contravene 
common  right,  259. 
Validity  is  for  the  court  to  decide, 

261. 
Legislature  may  authorize  unreason- 
able ordinances,  262. 
Must  be  consistent  with  public  poli- 
cy, 263.  ■  ]         '  ' 
Signing,  publication,,  and  recording 

of,  265. 
On  whom  binding,  and  notice  of. 

288.  . 

Bind  all  within   corporate  limits, 

289.  " 

Whether  non-resident  canbe  bound, 

289. 
All  bound  by  must  notice  them,  290. 
Licensing  and  taxing  ordinances, 

291. 
Nature  of  power  "  to  license,"1  and 

-'•'tax,"  Ac,  291-295. 
Public  offences,  ordinances  relating 

to,  300,  361. 
Public  health,  safety  and  conven- 
ience, ordinances  respecting,  303. 
Mode  of  enforcing  ordinances,  341,, 
Mode  of  procedure,  defences,  &c, 

350.         ' 
Ordinances   should  be  reasonably 

construed,  353. 
May  be  good  in  part,  and  bad  in 

part,  354. 
Proof  of  ordinances,  355. 
Unauthorized  ordinances  notground 

to  forfeit  charter,  720,  h. 
Quo  warranto  to  test  power  to  pass, 

721. 


INDEX. 


799 


ORNAMENTAL  PURPOSES. 

Acquiring  and  holding  property  for, 

427,  464. 
Dedicating  property  for,  510i 

PARK.    See  Dedication. 
Land  may  be  condemned  for  public 

park,  463. 
Uses  of,  510,  n. 

PARTIES.  See  Action  ;  Equity  ;  In- 
junction; Name. 

To  suits  to  restrain  illegal  corporate 
acts,  731,  el  seq. 

PARTY  WALLS. 

Special  power  to  regulate,  102, 
PATENTED  PAVEMENT. 

Power  to  contract  for,  389,  390. 

PAVING.     See  Streets;   Taxation 

and  Local  Assessments,  Chap.  XIX. 

Power  construed  and  word  defined, 
635-643. 

What  it  includes,  636-637. 

How  much  of  the  street,  638. 

Petition  for,  when  necessary,  639- 
641. 

Re-paving,  power  to  require,  619. 

Paving  street  crossings  and  inter- 
sections, 635. 

PAUPERS.    See  Poor. 

PEACE.     See  Ordinances;    Police 
Power. 

PENALTIES.    See  Fines. 
Power  to  enforce  ordinances  by,  270 

-287. 
Legislative  power  over,  32. 

PENNSYLVANIA. 
Act  to  regulate  boroughs,  p.  59,  n., 
Sec.  20. 

PERSONAL  LIABILITY. 

Of  public  officers,  176,  n.,  691. 
PETITION. 

Of  property  owners  for  street  im- 
provements, 639-641. 

"Owner,"  who  is,  637,  n. 

PLANK  ROAD. 
In  street  of  city,  p.  520,  n. 
Power  to  pave  street  occupied  by, 
'    p.  570,  n. 

PLEADING. 

Mode  of  enforcing  ordinances*  341- 
•      355. 

Mode  of  pleading  ordinances,  346. 


Requisites  of  complaints,  347. 
Mode  of  procedure,  defences,  &c, 
350-355.  '  •  ' 

POLICE  MAGISTRATE.    SeeMuNi- 
cJpal  Courts. 

POLICE    OFFICERS.      See    Office 
and  Officer. 

Are  state,  and  not  municipal,  offi- 
cers, 33,  34,  773. 
Mode  of  appointment  and  payment, 

o4. 

Extent  of  legislative  control  over, 

34. 
•Not  known  to  the  commoiilaw,  149. 
Powers,  duties,  and  liabilities,  149, 

150. 
Private  persons  not  compellable  to 

pay,  331. 
Power  to  arrest  offenders,  150,  847, 

note. 

POLICE  POWER  AND  REGULA- 
TIONS. 

Nature  and  extent  of  police  power, 
93. 

What  may  be  done  under  this  pow- 
er, 93. 

Quarantine  and  health  regulations, 

.  95. 

Police  regulation  and  taxation,  dis- 
tinction between,  291-293. 

Police  power  over  streets,  rate  of 
speed  of  travel,  326. 

To  compel  clearing  of  snow  from 
streets,  327. 

Regulating  removal  of  buildings, 
328. 

What  ordinances  may  be  passed 
under  police  power,  329-340. 

Police"  and  taxing  power  distin- 
guished, 609. 

Liability  for  torts  of  police1  Officers, 
773. 

POLLS.    See  Elections. 
Effect  of  closing  too  soon,  136,  n. 

POOR. 
Devises  and  gifts  to  corporations  for 

the  benefit  of,  valid,  436,  et  seq. 
Duty  to  care  for,  667,  n. 

POWERS.  See  Charter  ;  Constitu- 
tional Provisions;  Contracts;  Or- 
dinances ;  Ultra  Vires. 
Distinction  between  public  and  pri- 
vate powers  (see  Actions),  33,  89, 
761-765, 
Extent  of  municipal  powers,  canons 

of  construction,  55. 
Cannof;  be  delegated,  60. 


800 


INDEX. 


POWERS —Continued. 
,Nor  surrendered,  61,  567. 
Quo  warranto  for  illegal  usurpation 

of,  721. 
Abuse  of,  restrained  in  equity,  729- 

738. 
No  liability  for  misconstruing  pow- 
ers, 755. 

PRACTICE. 
Mode  of  enforcing  ordinances,  341- 

355. 
In  mandamus  proceedings,  694-712. 

PRESCRIPTIVE  CORPORATIONS. 
In  England,  15. 
In  the  United  States,  17. 

PRESCRIPTION  AND  ADVERSE 
POSSESSION,  433,  n.,  528. 

PRESIDING  OFFICER. 
Right  of  mayor  to  preside,  210. 
Power  to  maintain  order,  209,  n. 
Approval  of  proceedings  by,  209,  n. 
Signature  to  ordinances,  265. 
Mandamus  to  667,  n. 

PRIVATE  PROPERTY.  See  Emi- 
nent Domain. 

PRODUCTION  AND  DELIVERY. 
Of  corporate  records  and  documents, 
239,684. 

PROFESSIONS. 

Power  to  tax,  291, 632. 
PROHIBITION. 

As  a  remedy  for  illegal  corporate 
acts,  744. 

PROOF. 
Corporate  existence,  how  proved,  51. 

PROPERTY.  See  Corporate  Prop- 
erty, Chap.  XV.,  427. 

Distinction  between  public  and  pri- 
vate property,  34-47. 

Extent  of  legislative  control  over 
corporate  property,  34-47. 

Power  to  sell  private,  396. 

History  of  capacity  of  corporations 
respecting  property,  427. 

Under  Roman  jurisprudence,  .427. 

In  Europe  and  America,  428-430. 

Legal  capacity  in  the  grantee  to 
take,  431. 

Statutes  of  mortmain,  432. 

Implied  power  to  purchase  and  hold 
property,  432. 

Change  of  name  does  not  affect 
grants  of  property,  431  n. 


Charter  powers  respecting  property, 
433,  434. 

Rights  of  municipality  as  riparian 
owner,  73,  433,  n. 

Limitations  on  right  to  acquire  and 
hold,  434. 

Estoppel  and  adverse  possession, 
etc.,  433,  n. 

Special  powers  construed,  433,  n. 

City  and  county  as  tenants  in  com- 
mon, 433,  n. 

Real  estate  beyond  corporate  limits, 
435. 

Gifts  and  devises  to  corporations, 
436,  et  seq. 

Corporations  may  take  in  trust  and 
become  cestuis  que  trust,  437,  et  seq. 

Instances  of  charitable  trusts  to 
cities  sustained  (see  Trustees),  438 
-442. 

Cannot  execute  trusts  for  objects  de- 
hors the  corporate  purposes,  443. 

Who  may  question  the  right  to  hold 
property,  444. 

Power  to  alienate  property  of  a  pri- 
vate nature,  445,  456. 

Of  the  right  to  sell  property  on  exe- 
cution, 446. 

Mode  of  disposing  of  property,  447. 

Mortgages  and  leases  of  corporate 
property,  448,  449. 

Conveyances  of  real  estate,  how 
executed,  450,  451. 

Grants  to  unincorporated  place 
void,  431. 

Alienation  and  use  of  public  prop- 
erty, 512,  531. 

Taxation  of  municipal  property,  614, 
615 

Fraudulent  disposition  of,  prevent- 
ed, 729,  730. 

Liability  of  corporation  in  respect 
to,  780. 

PROPERTY  HOLDERS. 
Right  to  restrain  illegal  corporate 
acts,  731-736. 

PROSECUTIONS. 
To  enforce  ordinances,  341. 
Whether  civil  or  criminal,  344. 
In  what  name  conducted,  358,  n. 

PUBLICATION  OF  ORDINANCES. 
Construction  of  charter  provision 

requiring,  266-268. 
Proof  of,  355,  n. 

PUBLIC  BUILDINGS. 
Power  of  New  England   town  to 

erect,  13. 
Power  to  repair  and  erect,  92,  672. 


INDEX. 


801 


PUBLIC  BUILDINGS— Continued. 

Power  to  furnish  and  fit  up,  92,  n. 
Contract  between  city  and  county, 

92,  433,  n. 
Proper  uses  of,  92.  n. 
Conveyances  for  use  of,  valid,  436. 
Special  grant  for  court  house  and 

jail,  445,  n.,  512,  n. 
Erection  of,  on  public  square,  508. 
Interest  of  inhabitants  in,  695,  n. 

PUBLIC  CORPORATIONS. 

Defined  and  distinguished,  p.  30, 

10,  et  seq. 
How  created  and  classified,  p.  52, 

17  et  seq. 
Extent  of  legislative  control,  p.  70, 

29,  et  seq. 
Private  and  public  distinguished,  p. 

70,  29,  et  seq. 

PUBLIC  DEFENCE. 

Of  right  of  municipalities  to  aid  in, 
103. 

PUBLIC  LANDING. 
Dedication  for,  511. 

PUBLIC  PEACE.    See  Police  POW- 
ERS. 

Power  to  preserve,  340. 

PUBLIC  POLICY. 
Ordinances  must  be  consistent  with, 

263. 
Contracts  against  public  policy  void, 

382. 

PUBLIC  PROPERTY.    See  Dedica- 
tion; Streets. 

PUBLIC  SQUARE.   See  Dedication; 
Streets. 

Land  may  be  condemned  for,  463. 

Proof  of  dedication  of  property  for, 
504. 

Dedication  and  uses  of,  506-509. 

Right  to  ornament,  occupy,  and  en- 
close, 509. 

Remedy  to  recover  possession,  523, 
524. 

PUNISHMENT.    See  Criminal 
Offences;  Double  Offences;  Mu- 
nicipal Courts  ;  Ordinances. 
Must  be  within  legislative  limits, 
270,  et  seq. 

QUARANTINE  AND  HEALTH. 
Regulations  respecting,  95,  305. 
101 


QUALIFICATION.     See  Election; 
Office  and  Officer. 

Effect  of  choosing  disqualified  per- 
son, 135. 

QUARANTINE.    See  Health. 

Regulations  concerning,  95, 305. 
QUASI  CORPORATIONS. 

Distinctive  feature  of  American 
polity,  p.  17,  Sec.  9. 

Purpose  of  their  creation,  p.  17,  Sec.  9. 

Early  origin  of  local  government,  p. 
18,  Sec.  9. 

De  Tocque ville  observations  respect- 
ing, p.  18,  Sec.  9. 

Distinguished  from  chartered  cor- 
porations, Sees.  10,  761,  789. 

Difference  as  to  extent  of  liability, 
Sees.  761-789. 

QUORUM. 

Common  law  rules  respecting,  208, 
216. 

Essential  to  valid  action,  230. 

"Two-thirds  of  each  house,"  mean- 
ing, 25,  n. 

QUO  WARRANTO.    See  Chap.  XXI. 
p.  665.     , 

Against  London,  p.  14,  Sec.  8. 
Against  Massachusetts   and   other 

colonies,  p.  15,  Sec.  8. 
Function  of  writ  as  to  officers  and 

franchises,  678-682,  714. 
When  title  to  office  must  be  settled 

by,  678-682,  716. 
How  defendant  must  plead,  717. 
Nature  of  proceeding,  713. 
When  and  for  what  the  appropriate 

remedy,  714. 
To  test  corporate  existence,  718. 
Against  officers  of  assumed  corpora- 
tion, 718. 
Against  whom  to  be  brought,  719. 
Forfeiture  of  charter  or  franchises, 

720. 
For  illegal  usurpation  of  powers,|721. 
Not  a  writ  of  right,  discretion  of 

court,  722. 
Relator,  who  may  be,  722 
Supersedeas  bond,  p.  209,  n.,  Sec. 

174,  n. 

RAILROADS. 

Constitutionality  of  the  power  to 
municipalities  to  aid,  104. 

Decisions  of  the  different  states 
cited,  104,  n. 

Power  judicially  established,  but  its 
exercise  baneful,  104, 105. 

Power  to  aid  must  be  express,  106. 


$02 


INDEX. 


RAILROADS — Continued. 
Construction  of  grants  of  such  power, 

106. 
Conditions  precedent  must  be  com- 
plied with,  108,  423. 
Negotiable  railway  aid  bonds,  nature 

of,  405. 
Course  of  decision  in  the  United 
States  Supreme  Court,  415,  et  seq. 
Leading  cases  on  this  subject  in  that 

court,  417,  et  seq. 
State  court   decisions  referred  to, 

423,  et  seq. 
Power  to  issue,  essential  to  validity 

of  bonds,  426. 
Legislature    may   ratify  -defective 
subscriptions   by  municipalities, 
46,  425,  n. 
Mortgage    to   secure    railway   aid 

bonds,  448. 
Railroads  in  Streets. — Municipal  con- 
trol, and  legislative  power,  555 
-575. 
Whether  an  additional  servitude, 

556,  573. 
Right  to  cr6ss  and  occupy  length- 
wise, 560. 
Taxation    of,  by    municipalities, 

612,  629,  n. 
Local  assessments  upon  property 

of,  597,  n. 
Mandamus  to  compel  county  sub- 
scription— tencCer  of  books,  and 
demand,  696,  n. 
Defects  in  streets,  caused  by,  796. 

RATIFICATION. 

By  legislature,  of  corporate  acts  and 

by-laws,  46,  352. 
By   corporation,    of   unauthorized 

contracts,  383,  385. 
By  corporation.of  unauthorized  sales 

of  property,  447. 

RE -ASSESSMENT. 
Power  authorized,  Sec.  652,  p.  611. 

REAL  ESTATE.    See  Property;  Ri- 
parian Proprietor. 

RECONSIDERING. 
Of  the  right  to  reconsider  votes  and 
measures,  228. 

RECORDS  AND  DOCUMENTS. 
Chap.  XL  Sees.  231,  257,  et  seq. 
Records  kept  by  clerk  pro  tern.,  231. 
Signature  of  chairman,  231,  n. 
Power  to  amend  records  of  New 

England  town  meetings,  23l2,  233. 
General  power  oif 'clerk  to  ainend 

record,  234. 


New  board  amending  record  of  old, 
234. 

Parol  evidence  to  apply  record,  235. 

Parol  evidence  to  contradict  record, 
235,  236. 

Parol  evidence  to  show  omissions, 
237,  238. 

Mandamus  to  compel  delivery,  239, 
684.  . 

Corporation  may  replevy  records, 
239 

Of  the  right  to  inspect,  240,  684. 

Authentication  of  records  as  evi- 
dence, 241. 

Sworn  or  examined  copies  admissi- 
ble, 241. 

Use  of  records  by  and  against  cor- 
poration, 241.-242. 

Parol  evidence  of  resolutions,  269,  n. 

Mandamus  to  recording  officer,  667,  n. 

RECORDING  ORDINANCES. 
Construction  of  charter  provision, 
269. 

REGULATE.    See  Ferries;  License; 
Tax. 

RELATOR.    See   Mandamus;    Quo- 
Warranto. 

REMOVAL. 

Power  of  council  to  remove  officers, 

183-185. 
Of  officers  from  municipality,  167. 

REMEDY. 

For  illegal  corporate  acts,  727-748. 
REPEAL. 

Of  charter,  52,  114. 

By  implication,  54. 

REPLEVIN. 
Lies  for  official  books,  etc.,  239. 
Right  to  office  cannot  be  tried  in, 
239,  n. 

RESIDENCE. 
As  a  qualification  for  office,  134. 
Membership  constituted  by,  19,  n. 

RESIGNATION. 

Of  municipal  officers,  163. 
RESPONDEAT  SUPERIOR. 

Application  to  municipal  corpora- 
tions, 755,  766,772-778. 

RESTORATION  TO   OFFICE.    See 
Mandamus. 

RETROSPECTIVE  LEGISLATION. 
See  Corporate  Acts. 


INDEX. 


803 


RETURN.    See  Mandamus. 

REVENUE.  See  Constitutional 
Provisions;  Garnishment;  Taxa- 
tion. 

REVERTER.  See  Eminent  Domain  ; 
Fee;  Dedication;   Property; 

Trustees. 

REVIEW. 
Of  proceedings  of  municipal  corpo- 
rations and  courts  (see  Appeal; 
Certiorari). 

REVIVAL. 

Of  Corporations,  116. 
REWARD  FOR  OFFENDERS. 

Of  the  power  to  offer,  91. 
RIOTS  AND  MOBS. 

Liability  for  damage  by,  760. 

RIPARIAN  PROPRIETOR.    See 

Wharves. 

Rights  of,  as  respects  wharves,  70, 73. 
Boundaries  on  rivers,  etc.,  124. 
Where  title  of,  stops,  497. 
Rights  of  city  to  alluvion,  etc.,  433, 
497. 

ROADS  AND  HIGHWAYS.    See 
Eminent  Domain  ;  Streets. 
Establishment  and  control  within 

city  limits,  534-537. 
Taxes  and  labor  on,  may  be  required, 

536,  604. 

ROMAN  MUNICIPALITIES. 
Historical  view  of,  p.  2,  Sec.  3. 

RULES  OF  EVIDENCE.    See  Evi- 
dence. 
Corporation  cannot  change,  350. 

RULES  OF  PROCEEDING. 
How  changed,  226,  n. 

SABBATH. 
Laws  and  ordinances  for  the  ob- 
servance of,  330. 

SALARY.   See  Offices  and  Oeficers  ; 

Mandamus. 

Power  to  fix  and  change  compensa- 
tion to  officers,  168. 

Additional  or  extra  compensation, 
172. 

Where  officer  is  improperly  re- 
moved, 174. 

What  gives  right  to  salary,  174,  n. 

Liability  of  intruder  to  officer  de 
jure,  174,  n. 

Mandamus  to  compel  payment  of, 


SALOONS. 
Power  to  regulate,  tax,  etc.,  291,  n. 
Regulation  of  time  of  keeping  open, 
ooo. 

SCHOOLS  AND  SCHOOL  DIS- 
TRICTS. 

School  districts  are  quasi  corpora- 
tions of  limited  powers,  p.  32, 10,  n. 

Property  held  in  trust  for  benefit  of 
schools,  47.  n. 

Gifts,  etc.,  in  trust  for  educational 
purposes,  sustained,  438,  439. 

Legislative  control  over  school  dis- 
tricts, 35,  n. 

Records  of  school  district,  236. 

Conveyance  for  school  house,  valid, 
433,  n. 

Devises  and  gifts  for  public  schools, 
valid,  442,  n. 

Property  dedicated  for  schools,  510, 
512,  n. 

Mandamus  to  school  officers,  664,  n. 

SCRIP. 

To  circulate  as  money,  384,  406,  n. 
SEAL.    See  Contracts  ;  Boundaries. 
Power  to  adopt,  incidental. 
Effect  of  authoritatively  affixing, 

130. 
Proof  of  seal,  131. 
Contracts    not    under    seal,    when 

binding,  132,  374. 
Implied  contracts,  when  binding, 

132,  383. 
Individual  seal  of  officer  to  contract, 

effect  of,  376. 
Seal  on  corporate  conveyances,  449,  n 

SELECT  BODY.    See  Meeting. 
SELECTMEN. 
Power  of  to  bind  town,  p.  34,  11, 13, 
379. 
SETTLEMENT. 
Of  disputed  claim,  power  to  make, 
398. 
SEWERS.    See  Drains;   Local  Im- 
provements. 

SHADE  TREES.    See  Trees. 
SHORE.    See  Riparian  Proprietor. 
SIDEWALK.     See  Streets. 

Power  over,  etc.,  538. 

Openings  in,  553,  554,  585,  795. 

Of  what  material  constructed,  635- 
637.  v 

Defective  and  unsafe,  liability  for, 
785,  et  seq.,  794. 
SIGNING.    See  Presiding  Officer. 

Of  ordinances  by  mayor,  265. 


804 


INDEX. 


SINKING  FUND. 
Eights  of  creditors  in  sinking  fund 

for  their  benefit,  41. 
Funded  debt,  what,  86,  n. 

SNOW  AND  ICE. 
Obstruction  to  street  by,  liability, 
788,  n.  on  p.  754.  ; 

SQUARE.    See  Dedication;   Public 
Square. 

STALLION. 
Exhibition  of,  in  public  streets,  309. 

STATES  OF  THE  UNION.    See  Fed- 
eral Courts. 

Power  to  contract  and  to  sue,  14. 
Cannot  be  sued  without  their  con- 
sent, 14. 
Limitation  on    state  indebtedness 
does  not  apply  to  municipalities, 
90. 
Suits  in  name  of,  or  of  attorney 
general,  729,  n. 

STATUTE    OF   LIMITATION.    See 
Limitation  op  Actions. 

STEAMBOAT. 

Power  to  tax,  626. 
STEAMBOAT  LINE. 

No  implied  power  to  aid,  106,  n. 

STREETS.      Subject  treated,  Chap. 

XVIII.  on  Streets,  p.  500,  et  seq. 

Police  power  over,  to  secure  safety, 
326,  338. 

Speed  of  travel  regulated,  326. 

Steam  railways  may  be  prohibited, 
326,  n. 

May  compel  abutter  to  clear  off 
snow,  327. 

Regulation  of  removal  of  buildings 
on,  328. 

Contracts  for  grading  of,  371. 

Who  defray  expense  of  improving, 
382,  n. 

Conveyance  of  land  beyond  corpo- 
ration, for  street,  void,  435. 

Widow  not  dowable  in,  459. 

Land  may  be  condemned  for,  460. 

Private  persons  may  contribute  to- 
wards expense  of,  461. 

Mode  of  exercising  power  of  emi- 
nent domain  for,  466,  et  seq. 

Costs  and  expenses  -  of  opening, 
468,  n.,  607. 

Power  to  condemn  land  strictly 
construed  (see  Eminent  Domain), 
468,470,  el  seq. 

Requirements  of  law  must  be  fol- 
lowed, 470,  et  seq. 


Notice  and  procedure,  471,  et  seq. 

Appeal,  certiorari,  and  equity  juris- 
diction, 476. 

Compensation,   tribunal   to    deter- 
mine, and  amount,  477,  et  seq. 

Right  to  abandon  or    discontinue 
proceedings  to  condemn,  473,  479. 

Apportionment    of    damages    and 
benefits,  481. 

Provision  for  recording  streets,  472, 

■  note. 

Measure  of  damages  in  condemna- 
tion proceedings,  487,  488. 

What  benefits  may  be  considered, 
487,  488. 

Acquiring  streets  by  dedication  (see 
Dedication),  490,  et  seq. 

Limited  dedication  for  street  only, 
492,  n. 

Mines  and  deposits  of  coal  in,  492, 
525,  n. 

When  abutter  owns  to  center  (see 
Streets),  496,  n. 

Dedication  of  streets,  how  estab- 
lished, 498,  et  seq. 

Width  of  street  by  user,  &c,  502, 
538,  n. 

Extent  of  legislative  control,    ob- 
structions, 518,  519. 

Remedy    for    obstructions,    indict- 
ment, equity,  520. 

Liability  of  author  of  obstruction, 
521. 

What  are  nuisances  on  streets,  521, 
note. 

Remedy  of  private  persons,  522, 525. 

Ejectment  to  recover  possession  of, 
523,  526. 

Vacation  of  streets,  power,  527. 

Non-user  and  adverse  possession  of, 
528-533. 

Ordinary  highways  within  city  lim- 
its, 534-537. 

Municipal   power     over    uses    of 
streets,  538,  et  seq. 

Sidewalk,  power  over,  &c,  538,  n. 

Injuries  to,  power  to  protect,  539, 
644. 

Regulation  of  use  by  wagons,  &c, 
540. 

Nature  and  uses  of  streets,  541. 

Power  to  improve  and   graduate, 
542,  782,  783. 

Cistern  in  public  streets,  545. 

Gas  pipes  in  public  streets,  546-550. 

Water  pipes  in  public  streets,  551. 

Telegraph  posts  in  public  streets, 
552. 

Sidewalks,  openings  in,  553. 

Railways  in  streets,  municipal  and 
legislative  power,  555-578. 

Building  material  in  streets,  581. 


INDEX. 


805 


STREETS — Continued. 

Limitation  on  right  of  free  use,  581 
-583. 

Eights  of  adjacent  owners — usage, 
585. 

Kate  of  speed  regulated,  565. 

Street  railway  company — liabilities 
and  rights,  572. 

Use  of  streets  by  railroads — wheth- 
er a  new  burden,  564,  573. 

Road  taxes  and  road  labor,  536, 604. 

Remedy  to  compel  opening  of,  695,  n. 

Mode  of  compelling  repair  of,  673, 
745. 

Grading  and  changing  grade  of,  782, 
783,  797-800. 

Duty  to  repair  streets,  785,  et  seq. 

Liability  for  unsafe  streets  and  side- 
walks, 785,  et  seq. 

Liability  as  respects  drains  and 
sewers  in,  streets,  801,  802. 

SUBMISSION. 
To  vote,  of  local  questions,  valid,  23. 

SUITS.    See  Action;  Equity;  Rem- 
edy. 

SUMMARY  CONVICTION.  See  Mu- 
nicipal Courts. 
Validity  of,  345,  361. 
Review  of,  on  certiorari,  740,  741. 

SUNDAY. 
Constitutionality  ofv  Sunday  laws, 
330. 

SUPERSEDEAS  BOND. 
In  mandamus  appeal,  682,  n.,  712,  n. 
In  quo  warranto  appeal,  p.  209,  Sec. 
174,  n. 

SURETYSHIP. 

No  implied  authority  to  enter  into 

contracts  of,  393. 
Sureties  of  officers  of  corporation, 

153,  372,  n 

SURFACE  WATER. 
Liability  for  damages   caused  by, 
797-800. 

SURRENDER. 
Of  charter,  111. 

SURVEYOR.    See  Engineer. 
SUSPEND. 

Power  of  council  to  suspend  officer, 
185,  n. 

SWINE.    See  Animals;  Ordinances. 

TAKING    PRIVATE    PROPERTY. 
See  Eminent  Domain,  Chap.  XVI. 


TAXABLE  INHABITANTS. 
Right  to  restrain  illegal  corporate 
acts,  732,  et  seq. 

TAXABLE  PROPERTY. 
What  is,  denned,  613,  624,  n. 

TAXATION  AND  LOCAL  ASSESS- 
MENTS, Chap.  XIX.,  p.  556. 

Constitutional  provisions  limiting 
power  of  taxation  and  assessment, 
27. 

What  taxes  shall  be  levied,  is  for 
the  legislature  to  determine,  36. 

Taxation  in  new  districts  annexed 
to  old  corporation,  36. 

Extent  of  legislative  power  and  its 
limitations,  44,  45. 
Charter  limitation  on  taxing  power, 
107. 

Tax  must  be  voted  at  legal  meeting, 
204,  n.  *' 

Taxation  of  employments  and 
amusements,  291,  632. 

Distinction  between  taxation  and 
police  regulation,  29,  n. 

Distinction  between  power  to  tax 
and  to  license,  291-295. 

Power  to  tax,  what  will  confer,  336, 
685,  n. 

Road  taxes  and  labor  may  be  au- 
thorized, 536. 

Taxing  power  defined,  scope  and 
nature,  586,  et  seq. 

Taxation  and  eminent  domain  dis- 
tinguished, 589. 

Power  to  impose  local  rates  and 
assessments,  590. 

Federal  restrictions  on  taxing  pow- 
er, 591. 

Constitutional  provisions  respecting 
taxation  and  local  assessments 
construed,  592-604. 

Discriminating  taxes  against  non- 
residents, 591,  631. 

Uniformity  and  equality  of  taxa- 
tion, 592-603,  622. 

Taxation  of  special  occupations,  592 
-594,  624,  632. 

Retrospective  taxation,  595. 

Assessments  upon  property  bene- 
fited, 596. 

Upon  what  basis  authorized,  596, 
597. 

As  to  constitutional  restrictions  up- 
on power,  598-603. 

Local  assessments  sustained  in  most 
of  the  states,  596. 

Taxing  power  must  be  plainly  con- 
ferred, 605-607. 

Power  of  legislature  over,  608, 


806 


INDEX. 


TAXATION  AND  LOCAL  ASSESS- 
MENTS — Continued. 

Taxing  power  and  police  power  dis- 
tinguished, 609. 

Prescribed'  modi  must  be  pursued, 
610. 

Limitation  on  rate  or  amount,  107, 
610. 

General  revenue  laws,  when  appli- 
cable to  incorporated  places,  611- 
615. 

When  tax  to  be  levied,  610. 

Taxable  property,  what  is,  613-615. 

Exempted  and  omitted  property, 
616. 

"Tax"  and  "assessment,"  differ- 
ence between,  617. 

Power  cannot  be  delegated,  618. 

Is  a  continuing  one — re-paving,  619. 

By-laws  cannot  vary  charter  as  to, 
620. 

What  property  must  be  taxed,  621, 
622. 

Taxation  of  capital  in  merchandise, 
623. 

Taxation.of  income  and  occupations, 
592,  n.,  624,  632. 

"Within  corporate  limits,"  what 
property,  625-627. 

Taxation  of  railway  and  gas  com- 
panies, 628. 

Taxation  of  banks  and  bank  stock, 
629. 

Taxation  of  rural  lands  for  munici- 
pal purposes,  633,  634. 

Paving  streets,  power  and  mode, 
635-643. 

Petition  for,  when  requisite,  639. 

Notice  and  procedure,  642,  643. 

Actions  to  recover;  summary  pro- 
ceedings, 649-651. 

Ke-assessments,  authority  for,  652,  n. 

Mode  of  collection,  by  suit  and  by 
sale,  653,  et  seq. 

Personal  liability  for  taxes,  655,  n. 

Power  to  sell  to  be  strictly  pursued, 
658. 

Effect  of  municipal  tax  deed,  658,  :n. 

Liens  for  taxes  and  assessments, 
how  enforced,  43,  n.,  659,  '660. 

Mandamus  to  levy  taxes  in  favor  of 
creditors,  685,  et  seq. 

When  taxes  may  be  levied,  690. 

Power  of  federal  courts  to  compel 
levy,  692,  693. 

Tax-payer,  right  to  an  injunction, 
731-736. 

Eight  to  enjoin  illegal  taxes  and 
assessments,  737, 738. 

Revision  of  proceedings  by  certiorari, 
740. 

Actions  to  recover  back  illegal  taxes, 
751. 


TELEGRAPH  POSTS. 

In  public  streets,  552,  794. 
TENNESSEE. 

Mode  of  creating  municipal  corpor- 
ations in,  p.  58,  Sec.  20,  n. 
TERMS.    See  Office  and  Officer. 

Of  municipal  officers,  156. 
TITLE. 

Object  of  legislative  act  to  be  ex- 
pressed in,  28. 

Cloud  on,  prevented,  738. 

TORTS.    See  Action. 
Liability  of  municipal  officers  for, 

p.  214.  Sec.  176,  n. 
Liability  of  municipal  corporation 

for,  752-802. 
For  torts  of  agents  or  officers,  766, 
772-777. 
TOWNS. 
Organization  and,  powers  of,  in  dif- 
ferent states,  20,  n. 
Extent  of  legislative  power  over, 
24,  n.,  p.  29,  etseq. 
TOWN  COMMON.    See  chapter  on 
Dedication,  509. 

TOWNSHIP.    See  County;  Division 
of  Town  ;  Quasi  Corporation. 
Legislative  control  over  funds  of, 

35,  n. 

TOWNS  IN  NEW  ENGLAND.    See 

Quasi  Corporations. 

Historical  view  of  towns  in  New 
England,  9. 

Their  peculiar  character,  11. 

Summary  of  leading  statutory  pro- 
visions in  Massachusetts,  p.  34,  n., 
Sec.  11,  n. 

Origin  of  cities  in  Massachusetts,  p. 

36,  Sec.  11. 

Difference  between  New  England 
towns  and  English  municipal  cor- 
porations, 12. 

Limited  powers  of  New  England 
towns,  13. 

For  what  purposes'  money  may  be 

'    raised  and  taxes  levied,  13. 

Cannot  give  away  money  raised  by 
taxation,  13,  n. 

Powers  and  duties  of  selectmen, 
13,  n. 

Town  meetings,  notice  andadjourn- 
ment  of,  204-207. 

Requisites  of  notice  and  mode  of 
giving,  and  proof  of,  204-207. 

Recording  notice  of  meeting,  204,  m. 

Liability  for  neglect  of,  duty,  when, 
761,  et  seq. 

Liability  for  defective  highways, 
786-788. 


INDEX. 


807 


TOWN  PLATS.    See  Dedication. 
TRADE. 

By-laws  in  restraint  of,  void,  257, 
258. 

May  be  regulated,  257,  258. 

Power  to  tax  trades,  624,  630. 

TRAVEL.  See  Police  Power;  Ordi- 
nances; Streets. 

Rate  of  speed  regulated,  326. 

TREASURER.     See  Chap.  IX.,  on 
Municipal  Officers. 
His  personal  responsibilities,  p.  212, 
Sees.  176,  691. 

TREES. 
Power  to  protect,    in  streets  and 
public  places,  332. 

TRIAL.  See  Jury;  Municipal 
Courts;  Summary  Conviction. 

TRUSTEES  AND  TRUST  PROP- 
ERTY.   See  Chap.  XV.,  p.  415,  on 

Corporate  Property. 

Municipal  corporations  may  be 
trustees  for  certain  purposes,  37, 
437. 

Legislative  control  over  trust  prop- 
erty, 47. 

Legislative  control  over  lands  held 
for  use  of  schools,  47,  n. 

Municipal  corporations  may  be 
trustees  for  thair  own  benefit, 
437. 

Or  for  charities  within  the  scope  of 
their  duties,  437. 

Equity,  when  necessary,  will  ap- 
point trustees  and  compel  execu- 
tion of  trust,  37,437. 

Devise  to  the  city  of  Philadelphia 
by  Mr.  Girard,  to  educate  and 
support  indigent  orphan  boys, 
sustained,  438. 

McDonough's  will,  for  the  education 
of  the  poor  of  New  Orleans  and 
Baltimore,  sustained,  439. 

Similar  devise  by  Mr.  McMicken,  to 
Cincinnati,  sustained,  440. 

Mr.  Mullanphy's  devise  to  St.  Louis, 
for  benefit  of  poor  emigrants  and 
travelers,  sustained,  441. 

Devises  to  cities  for  hospitals,  &c, 
are  valid,  442. 

Other  instances  of  valid  charitable 
gifts  to  municipal  corporations, 
stated,  442,  n. 

Cannot  be  trustees  for  objects  ut- 
terly foreign  to  their  purposes, 
443. 


When  conveyance  passes  full  title, 
and  not  in  trust,  433,  446,  n. 

May  alienate  property  held  in  fee 
(see  Dedication),  445,  n.,  456. 

Equity  jurisdiction  over' trust  prop- 
erty, 729,  730. 

TURNPIKE  ROAD. 

In  street,  control  over,  p.  520,  n. 

Sec.  537,  n. 
Paving  street  occupied  by,  p.  570,  n., 

Sec.  597,  n. 

ULTRA  VIRES. 

Corporation  may  make  the  defence 
of,  381,  749,  766. 

UNITED   STATES   COURTS.      See 
Federal  Courts. 

UNREASONABLE  ORDINANCES. 
Are  not  binding,  253-260. 
Legislative  authority  to  adopt,  262. 

USAGE. 

As  affecting,  municipal  powers,  56, 
57. 

USER. 
Proof  of  corporate  existence  by,  51. 
Effect  of,  to  establish  dedication  of 
property  to  public  use,  500. 

VACANCY  IN  OFFICE,  161. 

By  resignation,  and  office  how  re- 
signed, 163. 

By  accepting  incompatible  office, 
164. 

By  abandonment,  167. 

VACATION  OF  STREET,  527. 

VAGRANTS. 
Power  to  arrest  and  fine,  334. 

VALIDITY. 

Of  by-laws  is  for  the  court,  and  not 
the  jury,  261. 

VEHICLES. 
Regulation  and  taxation  of,  293. 
Speed  regulated,  326. 
Use  of  streets  by,  540. 

VENICE. 

In  the  middle  ages,  p.  6,.  Sec.  5. 
VERMONT. 

Towns  in.  See  Towns  in  New  Eng- 
land. 

VESSELS  AND  BOATS. 
Power  to  tax,  626,  627. 


808 


INDEX. 


VOLUNTARY  PAYMENT. 

Of  illegal  taxes  and  fines,  not  recov- 
erable back,  751. 

VOTER  AND  VOTING.    See  Elec- 
tion; Officer. 

Mode  of  voting,  134. 
Votes  for  disqualified  person,  135. 
Vote  of  people  on  local  questions, 
23. 

"WALLS  IN  COMMON. 
Municipal  power  to  regulate,  102. 

WARDS. 
Division  of  corporation  into,  19. 

WARRANTS.    See  Orders. 

Power  to  arrest  without  a  warrant, 
149,  347,  n. 

Ordinary  corporation  warrants  or 
orders  treated,  406. 

Liability  of  indorser  of  such  war- 
rants, 408. 

Defences  to  such  instruments,  406, 
412. 

Cancellation  and  payment  of,  409. 

Warants  payable  out  of  particular 
fund,  413,  686,  n. 

Interest  on,  414. 

Mode  of  drawing,  373. 

Mode  of  compelling  payment,  685, 
note. 

WARRANTY. 
Liability  on  covenant  of,  450,  n. 

WATER- 

City  may  procure  supply,  97,  371, 
n.,438,  n. 

City  cannot  divert  water  course, 
97,  n. 

Land  may  be  condemned  for  supply 
of,  462,  475. 

Water  pipes  in  streets,  551. 

Taxation  of  water  companies,  628. 

Nature  of  municipal  power  respect- 
ing, 33. 

Liability  for  back  water  and  surface 
water,  797-800. 

WATER -COURSE. 

Power  over,  and  liability,  97,  797- 
800 

WAYS.    See  Streets. 

Liability  for  defective  and  unsafe 
streets,  786-796. 


WHARVES. 

Power  to  erect,  frequently  conferred 
on  municipal  corporations,  67. 

May  be  conferred  by  the  states, 
subject  to  federal  restrictions,  67. 

When  pilot  and  harbor  regulations 
valid,  67,  n. 

Right  to  charge  wharfage,  67,  72. 

Public  and  private  Wharves,  differ- 
ence, 68. 

Duty  and  liability  of  public  wharf 
owner,  69. 

Rights  of  riparian  proprietor,  70, 
73. 

Rights  of  municipality  as  riparian 
proprietor,  73. 

Powers  of  municipality  as  to 
wharves,  74,  et  seq. 

Municipal  liability  as  respects 
wharves,  77. 

Right  to  wharf  out,  433,  n. 

Dedication  of  property  for,  511. 

WILL. 

Mistake  in  name  of  corporate  de- 
visee, 122. 

Power  of  corporation  to  take  by  de- 
vise, 436,  437. 

"  WITHIN  THE  CORPORATION." 
What  property  is  within,  for  taxa- 
tion, 625-627. 

WITNESSES.    See  Evidence. 

In  corporation  court,  360. 
WOODEN  BUILDINGS.    See  Fire. 

Power  to  prevent  erection  within 
fire  limits,  338. 

WORDS  OF  INCORPORATION.  See 

Charter. 

No  prescribed  form  necessary,  21. 

WRIT  OF  ERROR.     See    Appeal; 
Certiorari. 

To  municipal  courts,  368,  369. 
Effect  of,  on  mandamus,  667,  n. 
Effect  of,  on  certiorari,  743. 

WRIT  OF  INJUNCTION.     See  In- 
junction. 

WRIT  OF  MANDAMUS. 

Form,  direction  and  service  of,  698, 
et  seq. 

WRIT  OF  QUO  WARRANTO.    See 
Quo  Warranto,  Chap.  XXI. 

YEAS  AND  NAYS.    See  Ayes  and 
Nays.